Regulating Medical Practitioners Vs. Regulating Medical Practice: The Role Of The Medical And Dental Council Of Nigeria In Checkmating Medical Negligence.
Regulating Medical Practitioners Vs. Regulating Medical Practice: The Role Of The Medical And Dental Council Of Nigeria In Checkmating Medical Negligence.
BY:
METI MONDAY UKPEH ESQ.
(Ama-mme Anana-Owo)
NBA, UYO BRANCH
AKWA IBOM STATE.
OCTOBER, 2021.
ABSTRACT
Apparently, the socio-political and cultural sectors of Nigeria are greatly shaken and the medical sector is no exception even as the medical institution is plagued with looming strike lately. Over the years, the medical sector has witnessed professional negligence borne out of lackadaisical demeanor of some medical practitioners even when laws, rules and regulations in place appear weak. Hence, the need for patients to be protected from medical practitioners who no longer use their professionalism to save lives but as an avenue to make cheap ends at the expense of their patients. Though some have held the view that the medical profession should be left to regulate itself (through the regulatory aid of the Nigerian Medical Council) and that it alone should decide what is an acceptable conduct. The Nigeria Medical Council regulates the actions of Medical Practitioners in line with laid down rules and regulations for medical practitioners towards a patient, and where a medical practitioner goes contrary to the rules and regulations, a medical tribunal is set up to try him for malpractices. Be that as it may, in bid to ensure the right of the patients in Nigeria, legislation and increased reliance on court action are some notable ways for redress of negligence of medical practitioners to aggrieved patients. This work will X-ray the ingredients of medical negligence, instances of negligence, challenges of the medical sector, the role of the Nigerian Medical Council, curtailment of medical negligence, curtailment/recommendations.
MEDICAL PRACTICE AND NEGLIGENCE IN NIGERIA
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September 10, 2
INTRODUCTION
In Nigeria, cases of medical negligence, have caused much grief to several families and little is known of the legal consequences of the actions of the medical practitioners or respective health care establishments even as medical regulatory bodies such as, Medical and Dental Council of Nigeria ("MDCN") become weak and handicapped in curbing these medical excesses. The reality that exists today is that an average Nigerian has only a vague knowledge of the existence or enforceability of the Laws regulating Medical Practice, particularly curbing Medical Malpractice and Negligence in Nigeria.
This segment will X-ray the following:
Meaning of medical negligence
Instances of this negligence
The role of MDCN
Liabilities of MDCN (and its medical practitioners) in negligence
Challenges/defences to redress of medical negligence
Possible recommendations in curbing medical negligence.
MEDICAL NEGLIGENCE:
In defining who a medical practitioner is, Section 8 of the Medical and Dental Practitioners Act provides, that he is one who has attended an approved course of training, the course was conducted at an institution so approved, or partly at one of such institution and partly at another or others, he holds a qualification so approved; and he holds a certificate of experience issued in pursuance of the Act.
Medical Negligence has been defined as the improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care providers. It can also be defined as an act or omission (failure to act) by a medical professional that deviates from the accepted medical standard of care. In Abatan V. Awudu, the Court of Appeal per Aderemi JCA, held that, the relationship between a doctor and his patient is one of trust
and confidence; a relationship where one has the power and the duty to treat and restore the other to mental and physical well-being.”Generally, only the person who has been a victim of the medical error can sue. However, where the patient has passed on, the next of kin of the patient can sue for compensation. If the patient is a child, the parents or the legal guardian of the child can sue. The victims of medical negligence can institute a legal claim under criminal law, civil law or a disciplinary action under the Medical and Dental Practitioners’ Act.
INSTANCES OF MEDICAL NEGLIGENCE:
It is pertinent to note here that, RULE 28 highlights instances that would amount to medical negligence.
The following include:
Failure to attend promptly to patient requiring urgent attention when the practitioner was in a position to do so. Manifestation of incompetence in the assessment of a patient. Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skilful 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.
Failure to obtain the consent of the patient (informed or otherwise) 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, inadvertent termination of a pregnancy, prescribing the wrong drug 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 circumstances for the good of the patient.
Failure to see a patient as often as his medical condition warrants or to make proper notes of the practitioners observations and prescribed treatment during such visits or to communicate with the patient or his relation as may be necessary with regard to any developments, progress or prognosis in the patient’s condition.
THE ROLE OF MEDICAL AND DENTAL COUNCIL OF NIGERIA (MDCN) IN CURBING MEDICAL NEGLIGENCE:
For the purpose of this work, I will reproduce Section 1 (2) of the Act or be sued in its corporate name.
(2) The Council shall have responsibility for :-(a) determining the standards of knowledge and skill to be attained by persons seeking to become members of the medical or dental profession and reviewing those standards from time to time as circumstances may permit;(b) Securing in accordance with the provisions of this Act, the establishment and maintenance of registers of persons entitled to practice as members of the medical or dental profession and the publication from time to time of lists of those persons;(c) Reviewing and preparing from time to time, a statement as to the code of conduct which the Council considers desirable for the practice of the professions in Nigeria(d) supervising and controlling the practice of homeopathy and other forms of alternative medicine; e) making regulations for the operation of clinical laboratory practice in the field of Pathology which includes
Histoopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology, and f) performing the other functions conferred on the Council by this Act
Thus, 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 Act above, codified the rules of professional conduct for Medical and Dental Practitioners in its Code of Medical of Ethics in Nigeria (2008).
For the purpose of disciplinary measures, Section 15(3) of the 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 Act 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 Act, 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 LIABILITY OF MDCN AND MEDICAL PRACTITIONERS IN NEGLIGENCE
Under this limb, there are basically three essential points to note, viz:
(a) That the doctor owed the patient a duty to use reasonable care in treating him or her.
(b) That the doctor failed to exercise such care, that is he was in breach of that duty.
(c) That the patient suffered damage(s) as a result of the breach.
For a civil claim in medical negligence, all elements of the three-part tests must be proved.
First, that the medical practitioner owed a duty of care to the patient – For a duty of care to exist, there must be a fiduciary relationship between the medical practitioner and the patient. There must be a doctor-patient relationship. This fiduciary relationship can also be formed impliedly without a formal consent by the patient if a person holds himself out as possessing special skill and knowledge and is consulted as possessing such skill and knowledge, by or on behalf of a patient as held by Lord Hewart CJ in R v Bateman.
Second, the duty of care was breached – After a duty of care is established, the patient must then prove that the conduct of the medical practitioner amounts to a breach of the duty of care and that he acted below the standard of care expected of him in his professional capacity. The court uses the objective test and expects the standard of a reasonable man.
Finally, the patient suffered damages.-the patient must prove that the injury or damages was not only caused by the defendant, but that it was also, a direct and not a remote consequence of the defendant’s action.
On the other hand, a hospital will be vicariously liable if its staff is negligent in the performance of their duties.This is based on the general principle recognized in the case of Igbokwe V University College Hospital Board of Management, where Irwin J held that; a hospital authority is responsible for the acts or omission of the whole of its staff, whether they were physicians, doctors, nurses or other employees.”
After a successful proof of negligence by the claimant, the court can grant adequate remedies such as damages which can be can be special; compensatory; aggravated or exemplary. Other remedies include injunction, specific restitution, and prohibition.
A patient can seek redress under criminal law in the gravest of circumstances that shows such disregard for life as to amount to a crime against the State and the degree of negligence must be above ordinary tortuous claims
In a case 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 Section 303, 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.
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.
A complaint can also be filed with the Medical and Dental Practitioners Disciplinary Tribunal established by Section 15 (1) of the Medical and Dental Practitioners Act. After investigations by the Medical and Dental Practitioners Investigation Panel, and a prima facie case is established, such negligent doctor will be liable to Suspension for a period not exceeding six months; or having his name struck off the medical or dental register, as the case may be, or admonition.
Another option available to patients is exploring any of the most used forms of alternative dispute resolution in resolving medical negligence cases which are Arbitration or Mediation.
CHALLENGES/ DEFENCES TO THE REDRESS OF MEDICAL NEGLIGENCE
This is mostly as regards litigation and to the fact that this area of law is mostly neglected in practice. Victims in court often face situations of unwillingness of doctors to give expert reports in cases of medical negligence.
Another hurdle is getting an appropriate autopsy report from a hospital as this may be purposely withheld to prevent the victim from establishing the claim or in order to buy time for the claim to become enforceable by the Public Officers’ Protection Act.
The Public Officers Protection Act (POPA) is one example of the loophole in Nigerian law that can affect the prosecution of cases. It provides that if you have any complaint against a public officer over anything done in the course of his official duty and you want to take legal action, you must do so within three months of the occurrence of that particular grievance.
This has led to the neglect of such cases as persons who are in shock and grief over the death of loved ones cannot institute an action immediately and as such a protection will then be placed on such medical practitioners who are public officers.
Another hurdle is the doubt as to whether he or she will succeed; due to corruption, excessive waste of time and money in the course of litigation and this discourages persons from taking up an action.
A medical doctor sued or charged for negligence can raise a defence where; the claimant failed to prove Negligence, the injury was caused by another unforeseeable act (Novus actus interveniens), the patient contributed to the negligence, there were illegal actions by the patient or the claimant has expressly given his consent to take his chances of injury from a disclosed risk (Volunti non fit injuria).
RECOMMENDATIONS IN CURBING MEDICAL NEGLIGENCE OF MEDICAL PRACTITIONERS:
With all the negative indices of medical negligence explained above, it would be very pertinent in this work to proffer possible solutions, hence make recommendations to reduce the incidences of medical negligence to the bearest minimum. These recommendations will be addressed below:
Diligent enforceability of statutory obligations on MDCN and medical practitioners:
The 1999 Constitution, under Section 33 and section 17(3)(d) provide for right to life and duty of the state to provide adequate health care and facilities respectively. The National Health Act (NHA), 2014, under Part 3, contains several Rights of health care users and the obligations of healthcare providers. The Medical and Dental Practitioners’ Act, which appears to be the main law regulating medical practitioners in Nigeria as their powers are derived therefrom, provides the requirements for registration, membership, and discipline of medical practitioners by the Medical and Dental Council of Nigeria. Also, the Code of Medical Ethics codified by The Medical and Dental Council of Nigeria (MDCN) in furtherance of its statutory functions as provided for in Section 1 (2) (c) of the Medical and Dental Practitioners Act, laid down the standards of acceptable medical and dental practice in Nigeria especially under Rules 26 to 70.
Furthermore, the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act, incorporated by Nigeria into its domestic law, is to the effect that all rights contained therein can be invoked in the court of competent jurisdiction, as enforceable rights and it includes the right to health and medical care under Article 16. Under the Criminal Code,the criminal liability of a medical practitioner for the negligent treatment of a patient is based on gross breach of duty which the medical practitioner owes the patient as provided under section 303. Also, there is negligence in cases of omission to perform a duty or carry out an act.Section 305A (2) further provides for liability for malicious breaking of a contract of service if such will endanger human life or cause serious bodily harm.
Revitalization of Ethical Obligations:
The Hippocratic Oath has been universally adopted by Medical personnel who pledge to consecrate their lives to the service of humanity; that the interest of their patients shall be their first consideration, and to give utmost respect for human life right from conception. Also, the International Code of Medical Ethics 1949 contains the duties of physicians to patients, to the society, and to themselves
OTHER RECOMMENDATIONS:
Undoubtedly, some health care providers and nurses lack the spirit of hospitality and care for the patients they are taking care of. Therefore, there is need for medical negligence to be included in our civil law and if such results to death, it should be a serious offence.
Also, the use of the National health insurance scheme established under the National Health Insurance Scheme Act should be adequately made use of. This is because the NHIS is aimed at providing quality healthcare in a cost effective way and patients are offered a variety of health care options.
Furthermore, citizens should be made aware of their rights to ask questions, right to second options, right to choose their preferred treatment options and a voice to complain.
Regular check and assessment of portfolio and skills of all medical practitioners and persons in the health sector should be carried out.
More so, an agency or committee should be set up to look into this affairs and groom and encourage doctors to give expert evidence and reports on cases of negligence and lawyers who take up such cases must ensure that they have a reasonable exposure and knowledge of such ailment, the negligent act, its causes and consequences and how they have affected the patent.
Hints/Tips/steps before prosecuting medical negligence:
Get your facts right. When did the negligence occur; if there was any bodily or emotional harm; whether a doctor explained the treatment options and its consequences
Get an expert opinion from a doctor. Find out what another doctor would have done in the same scenario.
Consult a lawyer. He or she would know the right things to do.
Write a letter to the doctor or hospital involved. Better yet, let your lawyer write it in order that the case is settled out of court.
If you have to go to court, be aware of the public officers’ protection Act and file the case within three months of the offence.
Get your medical case file as quickly as you can.
Gather as much evidence as you can. Follow your legal proceedings thoroughly to avoid the case being thrown out for non-diligent prosecution.
Brace yourself as the road to justice may be long, and you need courage to last you though the duration of the case. Do all the steps listed above.
We may not be able to solve all the challenges arising from medical negligence; however, we can collectively make efforts to make it bearable.
