Author :John S. Avoseh Esq.
Nigerian Law School, Council Legal Education University of Lagos, Akoka
The healthcare issues requires a great attention as health and human life is very paramount and great universal value. Indeed the medical profession is considered a noble profession in the world because it helps in preserving human life.
The healthcare of developed countries like Canada, America, Britain, Australia etc., patient rights are of major priority. Interestingly, patients want excellence, caring and cost effective treatment, with their confidentiality respected and their dignity preserved.
Formally in Nigeria, there is minimal awareness amongst the populace that there were laws regulating the delivery of medical services by the medical professionals and other health personnel.
This is no longer the case as globalization has occasioned an increased awareness of the rights of patients and duty of care, imposed by the law on those in the medical field in the course of performing their professional duties and responsibilities.
A patient approaching a medical practitioner expects medical treatment with all the knowledge and skill that the medical practitioner possesses to bring relief to his medical problem.
The relationship takes the shape of a contract relating to the essential elements of tort.
A medical practitioner owes certain professional duties to his patient and a breach of any of these professional duties gives a cause of action for the medical negligence against the medical practitioner.
The medical Practitioner has duty to obtain prior informed consent from the patient before carrying out diagnostic tests and therapeutic management.
The medical professionals in the course of discharging their duties are sometimes negligent as regards adhering strictly to their professional code of conduct.
For instance where a medical practitioner leaves operating instruments in the abdomen of a patent.
In Nigeria there exists a countless catalogue of negligent cases in which the involved medical personnel go Scot-free because their victims are ignorant of their rights let alone enforcements of such rights.
The writer of this article dwells on the essential legal duties and responsibilities of the medical practitioner and suggests ways to regain the faith that the public had in our medical professional.
The Doctor-patient relationship is the one based on trust and respect between the two parties and that is why this is a fiduciary relationship. However, the rapid change in the medical field and corporatization of health care system have strained the age-old good relations between the patient and medical practitioner.
The medical practitioner treats his patient only as a case /client and for the patient, the medical practitioner is only a service provider. This has developed distrust between the two and this distrust is only increasing day by day. Hence there is need for a concerted effort to bridge the “existing gap between the Doctor-patient relationships”.
For properly understand this must go back to the oath that we take when being ordained to this noble profession and understand the meaning of the words that we automatically utter at that time, we introspect whether we are abating by our oath or not.
The legal duties, ethical and moral liabilities of the medical practitioners are enshrined in the “Hippocratic Oath” that we take when being ordained into the medical fraternity. They are detailed in the Medical and Dental Practitioners Act and the Rules of Professional Code for Medical Practitioners.
A Doctor-patient relationship is a fiduciary duty in the medical profession. A fiduciary duty to protect the patients’ interest in favour of the patient understanding the nature of this relationship is a cornerstone to understanding and establishing liability in medical negligence cases.
This is because failure to establish a relationship between the parties and which failure is fatal to any action in negligence. According to Black’s Law Dictionary 9th Edition, defines fiduciary relationship as “a relationship in which one person is under a duty to act for the benefit of another on matters within the scope of the relationship”.
In ABATAN V. AWUDU (2003) 10 NWLR PT. 829 PG. 451. Where it was held that “the relationship between a medical a medical practitioner and his patient is one of trust and confident, a relationship where one has power and duty to treat and restore the other to medical and physical well-being”. This duty of trust and confident arises from the fiduciary relationship between the medical practitioner and his patient.
The Doctor-patient relationship is one that has traditionally been recognized as involving fiduciary duties. In the case of FIRST BANK NIGERIA PLC V. BANJO (2005) 4 NWLR. The Court of Appeal Per Bage CJA, “as he then was” held that “the status of being a fiduciary gives rise to certain legal incidents and obligations……” the court further held that: fiduciary or confidential relation is very broad term embracing those technical fiduciary relations and the informed relation which exists whenever one man trusts or relies upon another.
It is a relation founded on trust or confidence reposed by the person in the integrity and fidelity of another. A fiduciary relationship arises whenever confidence is reposed in one side and domination and influence result of the other.
A Doctor-patient relationship is deemed to have commenced as soon as the medical practitioner consents to undertake a medical examination of the patient. To this end, a medical practitioner is duty bound to observe the following common duties:
- DUTY TO RESPECT PATIENT’S PRIVACY AND CONFIDENTIALITY: The medical practitioner is under a duty to respect his patient’s privacy as well as any confidential information reposed to him in the course of treating his patient. This duty also reflected in the Hippocratic Oath, which every medical practitioner must take. This duty entails that such confidential information must not be disclosed to a third party. Rule 44 of the Rule of Professional Conduct for Medical and Dental Practitioners.
- DUTY TO DISCLOSED MATERIAL FACTS: The medical practitioner is under a duty disclose to his patient any fact which are necessary to the basic of an intelligent consent by the patient to the treatment which the patient is to receive. The patient requires vital information concerning the treatment he is to undertake so as to enable him make up his mind one way or the other.
- DUTY TO OBTAIN CONSENT: The medical practitioner is under a duty to obtain prior consent of the patient before embark on treatment. A patient who is armed with the vital information is at the liberty either to consent to being treat or not to give his consent. The required information ought to cover and give an insight into the nature of the treatment likely risks and hazards associated with the land of treatment in view and the likely outcome of each of them. It is not something that the medical practitioner will merely presume, it must be clear and unequivocal, not expressly gives. Rule 19 of the Rules of Professional Conduct for Medical and Dental Practitioners.
- DUTY OF EMERCENCY MEDICAL SERVICE: The medical practitioner has duty to render emergence medical care and protect life of patient. He cannot refuse this emergency life care service to anyone. The emergence service including standard hospital, urgent care facilities, outpatient surgery centers and even ambulances.
- DUTY TO TREAT: The relationship between a medical practitioner and his patient is a fiduciary one and creates duties and obligations for each of them. This relationship is established as soon as the medical practitioner consent to treat the patient. The law therefore ascribes the duty of care to the medical practitioner. This duty requires the medical practitioner to treat his patient for as long as the case of the patient requires of amounts to abandonment of a patient for a medical practitioner to withdraw midstream from treating the patient. It is therefore subject to any agreement to the contrary.
- DUTY TO RESPECT POTENTIAL DANGERS: The medical practitioner is obliged to report any potential dangers in the interest of the public, especially where the patient warrant that disclose be made to a third party in order to avert possible danger.
- DUTY TO INFORM PATIENT OF OPTIONAL TREATMENT: There may be instance where an aliment may be susceptible to more than one treatment and where this is the case, it become the duty on the part of medical practitioner to call the patient’s attention to the alternative. Rule 41 of the Rule of Professional Conduct for Medical and Dental Practitioners. According to Franklin & Robert “…..As an integral part of the physician owe all obligation to the patient, there is duty of reasonable disclosure of the available choices with respect to proposed therapy and of the danger inherently and potential involved in each”.
- DUTY TO CAUTION PATIENT: The medical practitioner had a duty of cautioning his patient concerning treatment, which may be harmful at the end. For instance, where surgery is undesirable, the medical practitioner should caution his patient against it. He is not to embark on such surgery taking undue advantage of his uninformed benefit. The watchword should be “life first”.
- DUTY TO EXERCISE DUE DILIGENCE: A medical practitioner requires to exercise utmost and higher level of carefulness on his part. For instance, it would amount to medical negligence and breach of the duty to exercise care and skill, for a medical practitioner of sterilize his surgical instruments leaving a surgical instrument or a swab in the body of his patient etc. lack of due diligence may be such that would amount to infamous conduct in professional respect as enunciated in the case of MEDICAL & DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL V. OKONKON (2009) 7 NWLR PT. 711, PG. 2006. The Respondent, a medical practitioner, was consulted by a couple who were Jehovah Witnesses. The wife was ill, and the Respondent’s medical assistance was sought. However, the couple gave the Respondent written instruments that he was not to perform any blood transfusions on the patient. He proceeded to treat her without transfusing blood, and the patient died. The Respondent was charged before the Medical and Dental Practitioners Disciplinary Tribunal (the Appellant), for contravening Section 6 of the Medical and Dental Practitioner Act, in that he treated the patient negligently, thereby conducting himself infamously in a professional respect. In a second charge preferred against him, he was accused of acting contrary on his oath as a medical practitioner and thereby conducting himself infamously in a professional respect also contrary to section 16 of the Act. At an enquiry held by the Appellant, that the Respondent was found guilty of the above charges, and he was suspended for six months. On appeal to the Court of Appeal, the Respondent was substantially successful, and the suspension was set aside. The Appellant further appealed to the Supreme Court. In a preliminary objection, the Respondent contended that some of the grounds of appeal did not relate solely to questions of law, and the latter sustained the judgment of the court appealing, holding that there was nothing infamous about the Respondent’s conduct.
However, medical professionals owe their patients a “duty of care”, which this duty is been breached and the patient suffer some damage then it gives rise to a potential claim for compensation.
LIABILITY FOR BREACH OF DUTIES BY THE MEDICAL PRACTITIONER
CIVIL LIABILITY: civil liability for negligence occurs when a person is said to omit to do something which a reasonable man would do when he is guided by the factors which originally regulate human conduct or when he does something which a prudent and a reasonable man would not do. The most common and potent basis of civil liability for medical practitioner cases is negligence. Thus where a health care provider administers treatment to a patient negligently and injury is caused to the patient, he may sue for medical negligence against the medical practitioner for the injury suffered. The rational for liability for medical negligence of a health care provider is that, someone harmed by the actions of such a provider deserves to be compensate by the injury party.
In law, a patient must establish three elements in order to succeed in an action for medical negligence, which are as follows:
- That the medical practitioner owed the patient a duty of care.
- That the medical practitioner was in breach of that duty.
- That the patient suffered injury / damages as a result of the breach.
In the case of DONOGHUE V. STEVENSON (1932) AC 562. The plaintiff’s friend bought her a ginger beer in café, she drank some of it and as she was helping herself to a second glass, the remains of a decomposed snail floated to the top of her glass. The nauseating sight of this and the impurities she already drank resulted in a shock and severe gastroenteritis. The case went all the way to the House of Lords on the preliminary issue as to whether a duty of care existed. The question for the House of Lords to decide was: (a) whether the company produced a drink and sold it to the distributor, (b) whether the company is under any legal duty to the ultimate purchaser or customer to ensure reasonable care that the article was free from defect likely to cause injury to health?, LORDS ATKIN held that Defendants who were manufactures of drinks owed a duty of care to the plaintiff who allegedly suffered illness after drinking the consent of the bottle of ginger ale beer which contained the decomposed remains of a snail. In MISS FELICIA OJO V. DR. GHARORO & UBTH MANAGEMENT BOARD (1991) 1 NWLR PT. 170 PG. 747. The plaintiff’s claim arose from a medical or surgical operation performed on her by the defendants, the operation was designed to correct a certain medical condition, but at the end of it, one of the surgical needles used in the operation got broken and the broken part could not be located or retrieved and it was consequently left inside the plaintiff. If it is the fact that a piece of surgical needles being in the plaintiff and the effects thereof as well as the effort to remove it that led to the cause of action. The plaintiff said that after the operation she had serious pain in her abdominal and vagina and she complained to the 1st defendant, who ascribed the pains to the stitches on the site of the operation wound. Four day later when pains would not subside, the 1st defendant ordered for an X-ray examination. The plaintiff said she had two X-rays and the X-rays confirmed that there was a broken needle in her stomach, which was not there before the operation. The plaintiff said the 1st and 3rd defendants informed her that due to the fresh wounds from the surgical operation they could not immediately conduct another surgical operation to recover the needle and also that the 1st and 3rd defendants did not tell her that they left anything behind in her stomach. The plaintiff gave evidence that she saw another gynecologist who informed her that judging from the way she was operated upon she would be unable to have a child. The defendants admitted the broken needle in her stomach but said the plaintiff was informed after the first operation. The defendants admitted also that nowadays sub-standard needles are being used and that such needles break easily during operations. He denied that the plaintiff could not have any child because of the broken needle in her stomach, that where the needle was located is in the anterior abdominal wall and there was no relationship with pregnancy. Certain legal questions arose, since the plaintiff pleaded particulars of negligence. One question was whether the plaintiff could still rely on the doctrine of res ipsa loquitur. In his judgment, the judge held that although defendants owed the plaintiff a duty of care in the management of her medical problem, the defendants were not negligent in the way and manner they managed her case. Surprisingly, the judge held that they were not negligent when they left a broken surgical needle in the abdomen of the plaintiff after a surgical case. The judge went further ton say that this was a peculiar case considering the fact that the defendant admitted that the broken surgical needle was still inside the plaintiff’s body. The 1st defendant was not available to the 2nd defendant’s facility. The judge thus said:
“I would have been prepared to grant plaintiff’s claim for the estimated cost of this operation on the ground that the defendants having put the broken needles in the plaintiff’s body albeit while not acting negligently, they ought to be responsible for the cost of removing it. I am however unable to make this award in view of the lack of evidence to convince the court that this procedure shall remove the broken needle”.
ALIYU V ATURU (1999) 7 NWLR PT. 612 & 536, OKIN BISULT LIMITED V. OSHO (2004) FWLR PT. 188, 1094. Interestingly, medical science is an area where change do occur and therefore medical practitioner must be in tune with current skills. He must keep abreast of new developments and is expected to be familiar with his own specialist literatures.
CRIMINAL LIABILITY: Criminal liability obviously applies to health care providers, and purpose of criminal prosecution is to punish the offender. In Nigeria, both criminal code and penal code provides sanction for criminal negligence especially that on the part of the medical practitioner and other health personnel. The provision of section 303 of the Criminal Code Act provides that “it is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty”.
From the foregoing provision it is clear that the criminal liability of a medical practitioner for his negligent treatment of a patient is predicted on the breach of duty which the patient constitute criminal proceeding against him. This section states the duty of persons doing a dangerous act such as administering surgical and medical treatment and their responsibility for the consequences that may result to the life or health of any person by reason of any omission to observe or perform that duty. The section does not by itself create an offence but creates a duty where it would have been doubtful whether or not one existed in criminal law. It establishes liability for consequences of the breach of that duty. It follow, therefore that if a medical practitioner does not use reasonable care or conduct of fall below the standard of care required by law, he is said to be guilty of medical negligence. This means that, if the he does not case reasonable care or he negligently performs his duties and thereby causes the death of patient, he is guilty of offence.
However, his negligence or incompetence must be so great as to show a disregard for life and safety, and to amount to a crime against the state and conduct deserving punishment. Consequently, for criminal liability, the degree of negligence required of health care providers is that it should be “gross medical negligence” and not mere medical negligence. In the case of KIM V. STATE (1992) 4 NWLR PT. 233 P.17. The Supreme Court held that the degree of negligence required in the medical profession to render a medical practitioner liable for medical negligence is that it should be gross negligence and not mere negligence, that the court cannot however, transform negligence of a lesser degree into degree into gross negligence by giving it that appellation. In AKERELE V. R. (1942) 8 WACA 56. The accused, a qualified medical practitioner administered injections of a drug known as sobita to children as a cure for yaws. A number of children died, and he was charged with manslaughter of one of the children. The case of the prosecution was to the effect that the accused had concocted too strong a mixture and thereby administered an overdose to the deceased, amounting to gross medical negligence. He was found guilty of manslaughter and sentenced to imprisonment for 3 years. The West Africa Court of Appeal upheld the conviction, but the accused further appealed to the Privy Council which held that the negligence of the accused did not amount to gross medical negligence and allowed the appeal. According to the court “it must be remembered that the degree into gross medical negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence by giving it that application”.
Thus, the medical practitioner owes to his patient a duty of care not to act negligently. This is so whether or not there is an agreement between them. He must possess reasonable skill and use that skill in every case. What is more important is that the medical practitioner must act as an average reasonable health care provider would act in the circumstances of the case.
Conclusion, The profession of the medical practitioners has been considered a high-risk profession. Attempts were made in this article to discuss what constitutes duties and responsibilities of medical practitioners as well as what constitutes liability for breach of his professional duties, the attitude of the courts when such cases are before it and the obstacle are before faced by patients in trying to seeks redress in the court of law. The modern concept of corporatization of the health care system has in a number of ways eroded the faith and trust in the Doctor-patient relationship. The developed countries like the United Kingdom, Canada, and United State of America, there is the compulsory health insurance policy which the every hospital should subscribed to in the event that there is breach of professional duty and responsibility so that the hospital may be indemnified in such situation. This process should adopt in Nigeria will promote settlement procedure in medical negligence and the patients would thereby be compensated for the negligence of the hospital. Indeed medical practitioners are not perfect and the law does not require them to be infallible.
 C.O. Okonkwo, “Medical Negligence and the Legal Implications” cited in B. C. Umerah, Medical Practice and the Law in Nigeria (Nigeria: Longman Nigeria Ltd), p. 123
 Kodilinye & Aluko, the Nigerian Law of Torts (2nded, Spectrum Books Limited 1999).
 I.P Enemo “Medical Negligence: Liability of Health Care Providers and Hospital” The Nigerian Judicial Review 10(2011-2012), P. 112.
 I.P. Enemo, “Medical Negligence: Liability of Health Care Providers and Hospitals” The Nigerian Journal Review 10 (2011-2012), pg. 112.
 A. Esan, “When is a Medical Doctor Said to be Guilty of Negligence in Nigeria”, (February 21st, 2016) Available at https://akintunde.esan.blogspot.com.ng /200602/when-is-medical-doctor-guilty-of.html