Contributor: Echoga Caleb Esq.
Available reports show that between 2018 and 2019, the National Health Service (“NHS”), the United Kingdom’s umbrella structure for public healthcare funding, expended an estimated £2.4bn (Two Billion Four Hundred Thousand Pounds) in providing compensation settlement for matters of medical negligence. This staggering figure not only draws attention to the severity of issues on Medical negligence, but also draws focus to how priority is directed to settling these claims of medical negligence, well at least in the United Kingdom.
In Nigeria, we practice a system that allows for the addressing of matters of medical negligence via the institution of civil claims (in tort), or criminal matters in cases where facts of gross negligence have been alleged. The ensuing question that therefore follows is how effective has the current regime of tackling Medical negligence been in actually addressing Medical negligence? One obvious reality is that the dearth of authorities on medical negligence in the country, already confirms the fact that matters relating to it are not well litigated. The reasons for this is not far-fetched. The cost of litigation, ignorance as to medical rights, the delay in litigation etc., all collectively operate to frustrate litigants.
In the circumstance, it becomes clear that a system that allows for the compensation of the victims of Medical negligence is highly required. This indeed forms the crux of this article – to amongst other things, engage critically the inadequacy of the fault principle (court actions) currently utilised in addressing negligence in Nigeria, the adoption of Alternate Dispute Resolution mechanisms (ADR), in addressing Medical negligence, and a general adoption of a more robust compensation approach.
Medical Negligence Explained
First, Negligence in its comprehensive sense essentially means the breach of a duty to take care which has resulted in injury/damages to another. For any successful claim of negligence to be established, a Claimant must typically show that (i) there exists a duty of care; (ii) that duty was breached; and (iii) the breach has occasioned damages to the Claimant. The concept of Medical negligence is no different. It essentially connotes negligence in medical parlance. It has been defined as “ an act or omission by a medical practitioner which falls below the accepted standard of care resulting to injury or death of the patient”.[1] The import of this definition is that a duty is placed on people of medicine, to endeavour to exercise reasonable standards of care in providing healthcare services to patients, as the failure to do so exposes them to tortious liability.
How is Medical Negligence Addressed in Nigeria?
Under the Nigerian medical jurisprudence, the options available to a victim of medical negligence include:
(a) Criminal Action.
(b) Civil Suits.
(c) Administrative Remedies Under the Medical and Dental Practitioners Act.
Criminal Action
Where the act of negligence committed by a medical practitioner is of such a grave nature that it results in death or grave bodily harm, a criminal action can be commenced against such a medical person. Typically, criminal medical negligence cases are typically commenced by first making a complaint to the Police, who would typically charge the accused medical practitioner.
In prosecuting matters of criminal negligence, recourse is typically made to the provisions of the criminal code which contains provisions addressing matters of negligence. Section 303[2] of the criminal code in this regard specifically reads:
“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”.
The Code goes on to further impose an imprisonment term of one-year for reckless administration of healthcare. Furthermore, where death occurs, a medical practitioner can be charged with murder under the provisions of Section 319 of the Criminal Code and Section 221 of the Penal Code.
Civil Suits
A victim of Medical negligence is also entitled to bring a tortious claim for medical negligence where he will be required to prove the ingredients of a duty of care owed, breach of that duty, and the consequential damage occasioned by the breach to be successful.
Administrative Remedies
The Medical and Dental Practitioners Act, creates the Medical and Dental Practitioners Disciplinary Tribunal, and saddles it with the responsibility of trying cases of professional misconduct.[3] Consequent upon its disciplinary powers donated by Section 16(2) of the Act, the Tribunal may deal with medical practitioners found wanting as follows:
- Strike off the practitioner’s name off the registrar of practitioners;
- License suspension for a period not exceeding six months; and
- Admonishment.
It is important to note, however, that the Tribunal does not provide compensation to victims of Medical negligence and accordingly, beyond the sanctions the Tribunal can make, an aggrieved victim can approach the Court for compensation in civil suits.
LESSONS FROM THE UNITED KINGDOM
The United Kingdom
In the United Kingdom, criminal actions can also be brought to address cases of Medical negligence. The distinction between Civil Suits for criminal negligence in the UK and Nigeria is that liability in the former is built around vicarious liability. What this connotes is that unlike Nigeria where a medical practitioner, alongside the institution he works for, are sued for medical negligence, in the UK, the National Health Service (“NHS”) is typically sued for cases of medical negligence involving its employees. The NHS as a public healthcare provider is funded by tax payers and governed by the National Service Act[4]. Owing to this arrangement, whenever a case of negligence is established against caregivers (doctors, nurses etc) that work in the institutions under the NHS, the NHS is held vicariously liable in what is known as “NHS indemnification”.
The NHS is able to meet up with compensation payments through the Clinical Negligence Scheme for Trusts, established under the National Health Service Act, which in itself is essentially an insurance scheme. It is subscribed to by various health authorities who pay premiums and in the event that a negligence claim is made, compensation is accordingly paid out of the fund. The Scheme is administered by the NHS Legal Authority which is responsible for managing the settlement of negligence claims either via conventional Court procedures or through the instrument of settlement. What is indeed commendably noteworthy about the NHS Legal Authority, which further provides a point of distinction with the Nigerian approach to managing Medical negligence, is that it emphasises the preference of out-of-court settlement over the laborious process of litigation. Indeed, a philosophy central to the authority goes thus: “maximise the resources available for patient care, by defending unjustified actions robustly and settling justified actions efficiently.”
In fact, the efficiency of the approach of the NHS is well captured by a 2009 research data provided by the NHS Litigation Authority[5], which commendably provides:
- Only 4 per cent of cases of medical negligence complaints eventually go to the Courts and undergo the adjudicatory processes of litigation;
- £633.3 million (approximately US$886 million) was paid in compensation between 2008 and 2009;
- Cases of Medical negligence were settled at an average period of 1.46 years;
- 96 per cent of cases were settled via various alternate dispute resolution methods.
THE WAY FORWARD
As is clearly observable from the UK in cases of Medical negligence, emphasis is placed on the speedy resolution of Medical negligence cases in instances where genuine claims have been made. In Nigeria however, and rather sadly, a victim of Medical negligence is left to bear the cost of maintaining negligence actions against givers of healthcare and accordingly has to deal with the inconveniences of cost, slow justice delivery, hardship in securing the attendance of expert witnesses (as they are unwilling to testify against their medical colleagues) etc.
The delay in addressing Medical negligence is further made worrisome, when one considers the lengthy period of time it takes to dispense with a case of Medical negligence in Nigeria, vis-à-vis the average time frame of 1.4 years in the UK.
Numerous examples accordingly abound of the delay in dispensing with cases of Medical negligence: In Rossek and Ors. v. [6]ACB Ltd & Ors, the Suit was filed in 1975 and an order of retrial was given after 18 years of litigation. S.A Abudu v. Alhaja T. Ogunbambi[7] and Sipeolu & Anor v. Allco Engineering Group Nig[8] took 29 years and 25years respectively to conclude at the High Court.
It is important to state that although Nigeria has National Health Insurance Act,[9] which essentially provides for a National Health Insurance Scheme, the NHIS is only designed to aid the provision of affordable healthcare and does not include coverage for medical malpractice. It is a social health security system in which the health care of an employee is paid for by both the employer and employee. This is achieved by monthly deductions of 5 per cent of basic salary from an employee and another 10 per cent of basic salary paid by the employee’s employer, which is then pooled together and used for all enrolees.[10] Essentially, there is cross subsidisation where the healthy subsidize for the ill, the young subsidize for the old and the higher income group subsidises for the lower income group.
It is obvious that to be able to treat the ills of delay in obtaining justice for cases of Medical negligence, Nigeria needs to toe a similar line with the UK, which is providing insurance coverage to guard against the heavy costs associated with Medical negligence.
CONCLUSION
In order to ensure that the victims of Medical negligence are adequately compensated and afforded the needed justice in Nigeria, the government must be willing to make available schemes, such as those obtainable in the UK where health care givers are insured against negligence claims, and settlements (for genuine cases) are prioritised over the lengthy process of Court litigation.
REFERENCE
- Oludamilola Adejumo and Oluseyi Adejumo, ‘Legal Perspectives on Liability for Medical Negligence and Malpractices in Nigeria’ (2018) PAMJ 35(14) < https://www.panafrican-med-journal.com/content/article/35/44/full/ > Accessed February 4 , 2022. ↑
- Criminal Code, Cap C38 LFN 2004 ↑
- Section 15(1) MDPA ↑
- NHS Act, 1977 ↑
- The NHS Litigation Authority, ‘Factsheet 2: Financial Information’< http://www.nhsla.com/NR/ rdonlyres/465D7ABD-239F-4273-A01E-C0CED557453D/0/NHSLAFactsheet2financialinformation200708.doc > Accessed 15 March, 2022. ↑
- (1993) 8 NWLR (pt 312) 382 ↑
- Suit No. LD/89/74 ↑
- Suit No LD/4/78 ↑
- NHIS ACT, LFN 2004. ↑
- Onyedibe Kenneth et al, ‘An Evaluation of the National Health Insurance Scheme
(NHIS) In Jos, A North-Central Nigerian City’ (2012) 1(1) Global Advanced Research Journal of Microbiology < https://irepos.unijos.edu.ng/jspui/bitstream/123456789/1121/1/Onyedibe%20et%20al.pdf > Accessed May 4, 2021. ↑
