Medical Negligence

Medical negligence is a breach of a duty of care by a person in the medical profession to a patient, which results in damage to the patient. The degree of negligence required of health care providers to be liable must be gross and not mere negligence. In Kim v. State (1992) 4 NWLR (PT 223) P.17. The Supreme Court held that the degree of negligence required in the medical profession to render a practitioner liable for negligence is that it should be gross and not mere negligence and that the court cannot transform negligence of a lesser degree into gross negligence. In this case reference was made to the case of Akerele V. R (1942) 8 WACAS, where 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 accused was said to have administered an overdose of the drug in the deceased, amounting to gross negligence. He was found guilty and sentenced to imprisonment for three years. The West Africa, Court of Appeal upheld the conviction, but on further appeal to the privy council, it was held that negligence of the accused did not amount to gross negligence.
According to the court, “It must be remembered that the degree of 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 giving it that appellation”.
Rule 29.4 of the Code of Medical Ethics in Nigeria 2008 outlines examples of what acts or omissions which constitute professional negligence as follows:
1. Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so;
2. Manifesting incompetence in the assessment of a patient;
3. Making an incorrect diagnosis, particularly when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them
4. 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 organs or function;
5. Failure to obtain the informed consent of the patient before proceeding on any surgical procedure or course of treatment when such consent was necessary;
6. 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.
7. Failure to refer, or transfer a patient in good time, when such a referral or transfer was necessary.
8. Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient;
9. Failure to see a patient as often as his medical condition warrants or to make appropriate comments in 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.
This provision has made it clear that victims of medical negligence have options for redress.

Nkechi Bright Ewere