ADELEWA Williams
Flowing from the first series of this article, it is almost clear that medical practice will sometimes give rise to situations where patients suffer some harm or injury in the course of treatment by the medical practitioners.
This harm or injury may be caused either by commission or omission of some actions done by or failed to be done by the medical practitioner. As earlier discussed, this can either be actionable in Civil or Criminal, depending on the facts in view.
However, it is important to state, as it’s been held in plethora of cases such as Agbonmagbe Bank Ltd. v. CFAO Ltd. (1967) NWLR pt.173; Abubakar v. Joseph (2008) 13 NWLR Pt.1104, Caparo Industries plc v. Dickman [1990] 2 WLR that before an award for damages can be made by the Court (both in Nigeria and the United Kingdom) there are ingredients (elements) that must be establish as it is generally settled in law that Negligence is a question of fact not law.
- That the healthcare providers owed a duty to the patient;
- That the healthcare provider breached that duty;
- That the patient suffered an injury; and
- That the patient’s injury was a proximate cause of the healthcare provider’s breach.
For easy comprehension, this series shall be link to the part 1 of this article by examining four (4) different grounds among other grounds, which will be x-rayed in the later article by which a litigant can maintain an action in law in the event where harm or injury is caused by a medical practitioner and the remedy available within the confines of law, which is explicitly on case laws.
Contractual Obligation
Patients who have suffered some form of damage or injury in the course of medical treatment may bring an action for breach of contract duty owed to them. This may be a viable option especially in cases where negligence cannot be proved.
Inherent in doctor-patient relationships that is largely contractual, is an implied term that the doctor will exercise reasonable skill and care in the treatment of patients. As such, the law will imply the existence of a contract in cases where a patient submits to treatment by a medical practitioner (McGlinchey v. U.K., App. No. 50390/99, 37 EHRR 41 (2003), Emiri FO. Medical Law and Ethics in Nigeria-1st Edition, Nigeria. Malthouse Press Limited. 2012).
The rationale for this as seen in most breach of contract cases is that the defendant is made to put the patient in the position he would have been if treatment was properly performed. The claim for damages will also lie where the breach of the medical practitioner’s warranty has caused the patient to incur some extra costs.
To succeed in an action for breach of contract unlike in negligence cases, it suffices for the patient to prove the existence of a doctor-patient relationship; breach of the implied/express term of the contract to treat; and injury arising from or in the course of treatment.
Fiduciary relationship
Under the rules of equity, a claim may also be hinged on the recognition of a doctor-patient relationship as one which imposes a fiduciary duty on the medical practitioner. A fiduciary duty to protect the patient’s interest may be imposed on the medical practitioner in favour of the patient. This claim was successful in Norbery V. Wynrib (1992). 92 DLR 449 and Abatan v. Awudu (2004) 17 NWLR Pt.092, where the court upheld this view to uphold and defend the patient’s fundamental and personal interest.
There are also cases where the patient suffers damages or injury but has no valid claim against the medical practitioner. This will arise where the patient has given informed consent or where the medical practitioner acted based on compulsion to save the life of the patient.
An apt example will be the removal of a patient’s uterus which refuses to contract during a caesarean section operation. The medical practitioner’s action is unlikely to amount to negligence or breach of his fiduciary duty especially in circumstances where his actions were in good faith and in the best interest of the patient.
Issues in causation
The fact that the Claimant’s injury was caused by the medical practitioner is crucial to establish negligence. Not only should the injury be caused by the defendant, the injury must be a direct and not a remote consequence of the defendant’s action. Hence, Lord Denning in M V. London Borough of Newham Unreported CA (1994), The Times 3rd March 1995 rightly noted that causation is a question of fact and not law.
This is especially relevant in circumstances where the Plaintiff would have died or inevitably sustained injury irrespective of the defendant’s negligence.
Causation cannot be based on assumptions especially in cases of medical negligence and hence, must be proved or at the minimum, show that the claimant’s injury was substantially caused by the defendant’s actions (R. V. Akerele (1941) 8 WACA 56). In Barnett V. Chelsea and Kessington Hospital Management Committee. (1969) 1 QB, 178, where a medical practitioner failed to attend to some patients who presented at his clinic, resulting in the death of one of the patients before morning, the court held that the medical practitioner did not cause the death of the said patient.
This was particularly because there was no known cure for the patient’s ailment and the patient would in any event had died even if he was attended to. The issue of causation will also be required to be settled in cases where there are alternative possible causes of death or injury. Proof that the medical practitioner’s negligence caused the injury or death cannot be dispensed within such cases. The medical practitioner’s ability to reasonably foresee damage or injury is also crucial in proving causation and establishing negligence.
Res Ipsa Loquitor
The plaintiff in civil case of negligence can make a plea of res ipsa loquitor- meaning ‘the fact speaks for itself’. This is an exception to the requirement of proof in certain cases. The plea of res ipsa is to the effect that the plaintiff’s situation is deemed to indicate that it was clearly a consequence of the defendant’s negligence.
As such, the burden shifts to the defendant to rebut the presumption of negligence against him by showing that the plaintiff’s situation could have been or was caused by other factors. The court is usually reluctant to extend res ipsa loquitor doctrine to cases of medical negligence. This is particularly because of the nature of the human system and medical practice. It may be easier to make such plea in cases where things are purely ‘physical’ and can be glaring enough to see.
However, by the nature of medical cases, it is not usually very easy to conclusively plea res ipsa loquitor. In O’Malley-Williams V. Board of Governors of National Hospital for Nervous Diseases. (1975) 1 BMJ 635 (Unreported), the plea of res ipsa failed because the injury being complained of was a well-recognised consequence of the procedure that was carried out.
Be that as it may, the doctrine of res ipsa may suffice in some exceptional medical negligence cases, to shift the burden of proof from the victim, to the medical practitioner.
