The legal framework for medical malpractice claims in Nigeria (Part 1)

1. Introduction

A. Definition and Significance of Medical Practice

Medical malpractice occurs when a healthcare professional fails to provide appropriate treatment, take appropriate action, or provides substandard care, resulting in harm, injury, or death to a patient. Malpractice or negligence typically involves a medical error. This could include diagnosis, medication dosage, health management, treatment, or follow-up.

B. Overview of the Legal Framework Governing Medical Malpractice claims in Nigeria

The primary piece of legislation governing Nigeria’s medical industry is the Medical and Dental Practitioners Act (the Act) of 2004. The Act establishes The Medical and Dental Council of Nigeria (MDCN), which oversees the registration of medical and dental professionals. To comply with its statutory obligations under the Act, the MDCN codified the standards of professional conduct for medical and dental practitioners in its Code of Medical Ethics in Nigeria, 2008. This code outlines Nigeria’s authorized medical and dental practices. The Medical and Dental Practitioners Disciplinary Tribunal and the Medical and Dental Practitioners Investigating Panel were also created by the Act. When charges of infamous conduct in a professional capacity are brought against a medical professional, the Panel is tasked with conducting preliminary investigations into the allegations. If the Panel finds that the allegations are true, it refers the case to the Tribunal for trial.

II. Elements of medical malpratice

The tort of Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.

It is not for every careless act that a man may be held liable in negligence as the tort relates to a breach of legal duty of care to the person to whom the defendant holds the duty and which results in legal injury. Thus, for a claimant to make a case of negligence in law, the following element must be established:

1. That the defendant owes the claimant a legal duty of care in the context in question

2. That the defendant has been in breach of that duty

3. That consequential to the defendant’s breach of the duty of care, the claimant has suffered harm or loss which flow from, or are caused by the breach of duty of care and not too remote from the causation/breach of duty of care.

These elements of negligence was stated in Donoghue v Stevenson (1932) AC 562.

Section 28 of the Rules of Professional Conduct for Medical and Dental Practitioner also known as Code of Medical Ethics highlights among others what constitutes professional negligence. Some of these are:

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

ii. Manifestation of incompetence in the assessment of a patient.

iii. Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skilful practitioner could have failed to notice them.

iv. 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 an organ.

v. Failure to obtain the consent of the patient (informed or otherwise) before proceeding with any surgical procedure or course of treatment, when such consent was necessary.

III. Medical regulatory bodies nd and professional standards

A. Nigerian Medical And Dental Council (NMDC)

1. Role and Responsibilities of the Medical and Dental Council of Nigeria

The Council shall have responsibility for:

a. Determining the standard of knowledge and skill to be attained.

b. The establishment and maintenance of registers of persons entitled to practice members of the medical or dental profession and the publication from time to time of list 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 practical in the field of Forensic Pathology, Autopsy and Cytology, Parasitology, Chemical Pathology, Medical Virology.

2. Professional Code of Conduct for Medical Professionals

All registered doctors and dental surgeons shall, in all areas of their professional conduct, practice and comportment, in professional and other relationships with their patients and other persons, be guided and bound by the rules contained in these codes. These principles are:

a. Practitioners have a responsibility in promoting not only individual health but also the general health of the community and in pressing for an equitable allocation of health resources.

b. Practitioners must strive at all times not only to uphold the honor and maintain the dignity of the profession but also to improve it.

c. Practitioners shall deal honestly with colleagues and patients at all times.

d. Practitioners must always strive to observe the laws of the land but may participate individually or collectively in accordance with citizenship rights to bring pressure to bear on government or authorities to change or modify laws or actions considered inequitable or inimical to the interest of the profession or the society

3.Health facility regulatory agencies

1. Accreditation and Licensure Requirements for Healthcare Facilities

• The Corporate Affairs Commission (CAC) business registration requirement will apply to healthcare. Additionally, through the State Ministry of Health, it must seek an operation permit from the Federal Ministry of Health. It should be mentioned that the State Ministry of Health typically issues operating licenses, which are renewed annually.

• Facility Requirement: While state-by-state regulations differ, fundamental requirements consist of:

• Building: It must be composite and not a component of a typical home. It must be roomy and have the following characteristics: A pharmacy/dispensing room, treatment room, waiting area, admission ward, medical record department, consulting room, theatre/procedure room, treatment room, restrooms, and laboratory

• Environment: There must be proper Waste Management System, Source of Water supply and Hospital Safety Devices

• Equipment: The healthcare must have Oxygen Source (Oxygen concentrator or Oxygen Cylinder), Sterilizing Equipment (Autoclave), Patient monitors, Suction machine (automated or manual) and others (Hospital bed, Bedside Lockers etc.)

• Staffing Requirement: The Medical and Dental Council of Nigeria (MDCN), the Nursing and Midwifery Council of Nigeria (NMCN), the Medical Laboratory Scientist of Nigeria, and the Pharmaceutical Council of Nigeria (PCN) are the main professional regulatory agencies in the health industry. Specific rules are in place for each of these professional regulatory bodies in Nigeria to govern the services provided by their members. A certified and registered pharmacist registered with the Pharmaceutical Council of Nigeria (PCN) is needed for any hospital that compounds medications

Article written by Olufe Popoola

Olufe Popoola is an associate in the conflict management and dispute resolution practice Group at the trusted advisors The Trusted Advisors is a leading Nigerian full-service law firm providing cutting-edge and timely legal solutions and services to its clients.

Disclaimer: This article provides general information and does not constitute legal advice. For specific legal advice, readers are advised to contact us on info@ trustedadvisorslaw.com