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Abstract
Negligence actions are the most important and dynamic of all torts because they are the principal means of compensating victims of accidents, including medical errors. Unfortunately, victims of medical error in Nigeria have not historically been able to enjoy the relief available through negligence suits. This article explores the Nigerian legal and regulatory framework for addressing medical errors and offers suggestions that could help improve such medical error response.
Acknowledgement
The text of this work was derived from a paper titled “Litigating against Medical Negligence in Nigeria” presented at the Prof. Epiphany Azinge’s Colloquium, February 28, 2022, by Dr. Chukwudi Victor Odoeme.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
Notes
1 J.M. Powis Smith, Origin and History of Hebrew Law (Univ. Chicago Press, 1931).
2 See Everad v. Hopkins, 80 Eng. Rep. 1164 (1615). The Hammurabi Code has given rise to memorable decisions, including a decision that held that both the master and his servant can sue a doctor who made a servant more ill by the use of unwholesome medicine.
3 See, e.g., id. (plaintiff’s husband sought damages from the doctor when his surgical procedure failed to repair his wife’s mangled hand despite the doctor’s contractual promise to so do).
4 See, e.g., id.
5 See generally Ivan Dieb Miziara & Carmen Silvia Molleis Galego Miziara, Medical Errors, Medical Negligence and Defensive Medicine: A Narrative Review, Clinics (Sao Paulo), Jan.-Dec. 2022.
6 See generally id.
7 See Okike v. Legal Prac. Disciplinary Comm. [2005] 15 NWLR 949 (defining “infamous conduct” as an act or omission that will bring the profession into disrepute).
8 See generally AD Olusegun-Joesph et al., Medical Mortality in an Emergency Department in Nigeria: The Transition Is Obvious!, 21 African Health Sci. 172, 176 (2021).
9 Folakemi Ajala, Medical Negligence and Its Impact on Health Outcomes, The Guardian, July 20, 2021.
10 Chioma Odoeme is the daughter of an author of this piece, Dr. Chukwudi Victor Odoeme.
11 A Tale of Medical Negligence, This Day (last visited May 11, 2023), https://www.thisdaylive.com/index.php/2021/05/13/a-tale-of-medical-negligence/.
12 See, e.g., id.
13 U. Abugu, A Critical Appraisal of the Legal Regime for Medical Malpractice Claims in Nigeria (2015) (Ph.D. Thesis, Faculty of Law, University of Abuja) (on file with author) (only 1.1% of injured survey respondents attempted any form of redress for the injuries suffered).
14 Id.
15 Edoghagho Eboigbe & Omokhofe Okhakhu, Medical Jurisprudence in Nigeria: Comparing the Legal Framework on Medical Negligence with Those of Some Western Jurisdictions, 1 Int’l J. Compar. L. Legal Phil. 89, 92-93 (2019).
16 See University of Ilorin Teaching Hosp. v. Abegunde [2015] 3 NWLR 454, at ¶ H.
17 See generally, e.g., Parth Shah et al., Informed Consent (StatPearls Publ’g, 2022).
18 See University of Ilorin Teaching Hosp., supra note 16.
19 Proving Fault in Medical Malpractice Cases, FindLaw (reviewed by Robert Rafii, Esq.) (Nov. 30, 2018), https://www.findlaw.com/injury/medical-malpractice/proving-fault-in-medical-malpractice-cases.html.
20 See generally Ethan D. Grober & John M.A. Bohnen, Defining Medical Error, 48 Can. J. Surg. 39, 39-44 (2005).
21 See Miziara & Miziara, supra note 5.
22 See Oludamilola Adebola Adejumo & Oluseyi Ademola Adejumo, Legal Perspectives on Liability for Medical Negligence and Malpractices in Nigeria, 35 Pan African Med. J., Feb. 2020.
23 Id.
24 Id.
25 Id.
26 Id.
27 Id.
28 See generally supra note 22.
29 See Ashish Upadhyay et al., Medical Malpractice in Hip and Knee Arthroplasty, 22 J. Arthroplasty, Sept. 2007; see also What Qualifies as Medical Malpractice?, Ben Crump, https://bencrump.com/medical-malpractice/what-qualifies-as-medical-malpractice/ (last visited May 11, 2023).
30 See A Tale of Medical Negligence, supra note 11.
31 Id.
32 Uwakwe Abugu, Practice and Principles of Medical Law and Ethics (Univ. Abuja Press, 2018).
33 While the Insurance Act 2003 provides for mandatory insurance coverage for motor vehicles (third party) and building construction, no such provision is made for patients in case of medical malpractice.
34 See, e.g., Ojo v. Gharoro [2006], 10 NWLR 173.
35 Id.
36 Id.
37 When Hospitals and Surgery Centers Say “I’m Sorry,” The LeapFrog Group, https://www.leapfroggroup.org/influencing/never-events#:∼:text=Often%20called%20Never%20Events%2C%20these,infant%20to%20the%20wrong%20person (last visited May 11, 2023).
38 Ojo [2006] 10 NWLR 173.
39 Id.
40 See When Hospitals and Surgery Centers Say “I’m Sorry,” supra note 38.
41 See Nancy A. Ryll, Living Through Litigation: Malpractice Stress Syndrome, 34 J. Radiol. Nurs. 35, 35-38 (2015); see also Sara C. Charles, Charlene E. Pyskoty, & Amy Nelson, Physicians on Trial—Self-Reported Reactions to Malpractice Trials, 148 W. J. Med. 358-360 (1988); see also Thomas G. Gutheil et al., Preventing ‘Critogenic’ Harms: Minimizing Emotional Injury from Civil Litigation, 28 J. Psychiatry L. 5, 6 (2000); see also Paul R. Lees-Haley, Litigation Response Syndrome: How Stress Confuses the Issues, 56 Def. Couns. J. 110 (1989).
42 Id.
43 Id.
44 Id.
45 Id.
46 See generally supra note 22.
47 Medical and Dental Practitioners Act, CAP M8 § 15(3), Laws of Federation of Nigeria (2004).
48 See Abi v. Central Bank of Nigeria & Ors [2007] LCN/4597 (CA) (explaining that where records in the hospital are tendered in court, it does not have much impact).
49 Abugu, supra note 33.
50 See, e.g., Okonkwo v. Medical and Dental Prac. Disciplinary Tribunal [2001] 7 NWLR 206, 245 (holding that allegations amounting to criminal offenses take the complaint out of the jurisdiction of the Medical and Dental Practitioners Disciplinary Tribunal and into the realm of the courts); see also Denloye v. Medical and Dental Prac. Disciplinary Comm. [1968] 1 NLR 306.
51 Abugu, supra note 33.
52 Okonkwo [2001] 7 NWLR 206.
53 Id.
54 Mohammed [1999] 9 NWLR 617, ¶¶ D-G.
55 Id.
56 See, e.g., id.
57 Eboigbe & Okhakhu, supra note 15.
58 See id.
59 See cf., Sifax Nigeria Limited & Ors v. Migfo Nigeria Limited & Anor [2015] LCN/7844 (CA) (holding that filing a case in the wrong court freezes the limitation period).
60 See Sifax Nigeria Limited & Ors [2015] LCN/7844 (CA).
61 See Findlay Stark, Culpable Carelessness (Cambridge Univ. Press, 2016); see also Adejumo & Adejumo, supra note 22; see also Chevron Nigeria Ltd. & Anor v. Kehinde Omoregha & Anor [2015] 16 NWLR 336.
62 See Adejumo & Adejumo, supra note 22.
63 Findlay Stark, Culpable Carelessness (Cambridge Univ. Press, 2016).
64 See generally Negligence vs. Medical Malpractice, Sobo & Sobo (last visited May 15, 2023), https://sobolaw.com/medical-malpractice/negligence-vs-medical-malpractice/.
65 See, e.g., Eboigbe & Okhakhu, supra note 15; see also Parth Shah et al., supra note 17.
66 Chevron Nigeria Ltd. & Anor [2015] 16 NWLR 336.
67 See id.
68 See Jwan v. Ecobank Plc & United Bank for Africa Plc [2021] 10 NWLR 449; see also University of Ilorin Teaching Hosp., supra note 16.
69 Evidence Act, 2011, § 131 (Nigeria).
70 Otti v. Excel-C Medical Centre Ltd. & Anor [2019] 16 NWLR 281.
71 See Jwan, supra note 70, at § 141.
72 Criminal Code Act, § 343(1)(e) (Nigeria).
73 See Raphael Obijiaku v. Chief Joe Obijiaku & 2 ORS [2022] 17 NWLR 377, 405.
74 See Adejumo & Adejumo, supra note 22.
75 See, e.g., id.
76 See generally supra note 22.
77 Okonkwo [1999] 9 NWLR 617, ¶¶ D-G.
78 Id.
79 See Jwan, supra note 69; see also University of Ilorin Teaching Hosp., supra note 16.
80 Gilbert Kodlinye & Oluwole Aluko, Nigerian Law of Torts (Spectrum Books, Ltd., 2d ed. 1999).
81 See Adejumo & Adejumo, supra note 22.
Additional information
Funding
Notes on contributors
Chukwudi Victor Odoeme
Dr. Chukwudi Victor Odoeme is a notary public. He is a Fellow of the Institute of Corporate and Public Administrators of Nigeria (FICPAN) and a Fellow of the Institute of Disaster Management and Safety Science. He is a senior lecturer in the Faculty of Law, Veritas University Abuja. He holds an LLB (Hons.) from Abia State University Uturu, Abia State, Nigeria; a BL from the Nigerian Law School; an LLM and Ph.D. (Law) from the University of Abuja Nigeria; and an MSc in political science and a Ph.D. in international relations from the University of Nigeria Nsukka, Enugu State, Nigeria. E-mail: [email protected]; [email protected]
Dennis Ugwuja
Dennis Ugwuja is a Fellow of the Institute of Corporate and Public Administrators of Nigeria (FICPAN). He is a law lecturer with the Faculty of Law, Veritas University Abuja. He holds an LLB (Hons.) from Enugu State University of Science and Technology, Enugu State, Nigeria; a BL from the Nigerian Law School; an LLM from the University of Dundee; and a Dip in international environmental law from UNITAR Geneva. E-mail: [email protected]
Chigozie Sergius Onah
Chigozie Sergius Onah is a law lecturer with the Faculty of Law, Veritas University Abuja. He has an LLB (Hons.) from the University of Nigeria Nsukka, Enugu State, Nigeria; a BL from the Nigerian Law School; and an LLM from the University of Lagos, Lagos State, Nigeria. E-mail: [email protected]