Issues in Medical Negligence Featured

Sunday, 29 March 2015 00:00 Written by  Published in Law Review Read 3515 times

In what instances could a medical officer be said to have acted in negligence and a patient claim to have been wronged?
— Adaku Victoria Nwaeluwe

 

 

Nchi, in The Nigeria Law Dictionary, defined negligence as “unreasonable omission to perform a duty resulting in damage or injury to others; to cause damage to others by the failure to use such care as a reasonable and prudent man would use in similar circumstances.”

To Rutherford and Bone, in their Concise Law Dictionary, “negligence may signify a state of mind, i.e., either a person's inadvertence to the consequences of his conduct or the deliberate taking of a risk without necessarily intending the consequence attendant upon that risk.” 

In the English case of Lochgelly Iron and Coal Co. v. McMullan, the Court (per Lord Wright), explained that negligence “In strict legal analysis…means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty breach and damage thereby suffered by the people to whom the duty was owing.

Taking a cue from the above definition, the constituents of negligence could be said to be that: there is an act or omission; no reasonable care was demonstrated while doing this act or omission;  injury was sustained as a result of the above situations.

Since negligence is a question of fact, not law as held in the case of Ngilari v. Mothercat Ltd, each case must be decided in the lights of its peculiar facts.
Therefore, for a plaintiff to succeed in the court, three elements must be present and proved. These, as noted in the case of Anya v. Imo Concorde Hotels Ltd, are: 1) that the defendant owed the plaintiff a duty of care; 2) that that duty of care was breached ; and 3) that the plaintiff suffered damage as a result of that breach.

Put in other words, as encapsulated in the case of Hanseatic International Ltd V. Usang, “the plaintiff in an action for negligence must show that he had suffered damages in consequence of the defendant's failure or breach of defendant duty of care. In other words, for a claim in negligence to succeed, the plaintiff must prove that the defendant owes him a duty of care and was in breach of that duty”. The same position was held by the Supreme Court in the case of Ojidiobu v. Okeabukwu.

What the law tries to show is that, for every breach of duty of care, negligence can be adduced except a legal defense acceptable by the law can be raised to negate this. This duty of care can be imposed by law or created by contract or trust (see International Messengers Nig. Ltd v. Nwachukwu).  
In order not to keep us guessing on what duty of care really connotes, many cases in the courts tied it to the doctrine of proximity in any action of tort of negligence. This doctrine of proximity was properly explained by the House of Lords in Anns v. Merton London Borough Council thus:

“In order to establish that a duty of care arises in a particular situation, the question has to be approached in two stages, first, one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient  relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the later in which case a prima facie duty of care arises. Secondly, if the question is answered affirmatively, it is necessary to consider whether there are any consideration which ought to negate, or to reduce or limit the scope of duty or the  class of person to whom it is owed or the damages to which a breach of it may give rise.”

For a defendant to be liable in a case of negligence, it must be proved either by his own admission or through sufficient evidence adduced by the plaintiff to support his claim. A conclusive proof of negligence on the side of the defendant, will confirm his liability as enunciated in the case of Anya v. Imo Concorde Hotels Ltd. Therefore, if the defendant admits on his own that he is negligent, then there is no need for further proof. This position is clearly supported by Section 75 of the Evidence Act, which provides that, any fact admitted by a party needs not be proved again. (See Zenith plastics Industry Limited v. Samstech Limited).

To establish sufficient evidence to show that the defendant is liable, the court, foremost, would find out whom a reasonable man is (who can be liable before the law for act of negligent). In Oilserv  Limited v. L.A Ibeanu & Co. Nig. Ltd & Ors, such a person is described as “a fair minded man, rational in thought and includes the ordinary person seen on our streets, whose means of transport is the popular Okada or mammy wagon. It also includes the affluent, highly literate or otherwise.''

Secondly, the court wants the plaintiff to show that he is injured by the act or omission of the defendant. The reason is that, without injury, no tort of negligence will be actionable. This fundamental point was well analysed in the case of International Messengers Nig. Ltd v. Nwachukwu where the Court of Appeal held that:

Negligence is only actionable if actual damage is proved. There is no right of action for nominal damages in the tort of Negligence. This is because negligence alone does not give a cause of action, as damage alone does not give a cause of action. The two must co-exist.

In a nutshell, in order for the plaintiff to succeed in his claim for tort of negligence, he must show that; i. The defendant is liable; ii. that he admitted to have been negligent; iii. where he did not admit his liability, there must be evidence to support that he is; iv. such evidence must be direct, not mere allegation; v. where the evidence is not direct, then it must be inferred from the conduct of the defendant.

Medical negligence

In reality, it must be mentioned that there are many cases of negligence treated by the court. For example, in a court case of Menarde v. Philadelphia Transportation Co., the plaintiff, a young woman, was to be transported on a trolley car which was started suddenly. The careless handling of this means of conveyance made the patient to fall down and sustain injury on her ankle, right knee and both hands. She was treated immediately after the incident in the hospital. After some weeks, she discovered that the right side of her body (including the breast) has become discoloured, which she reported promptly. Two months later, the plaintiff detected a lump on her breast at the exact spot where she sustained injuries. A diagnosis of cancer was made which led to the carrying out of radical mastectomy on the plaintiff. The surgery entails the removal of the entire breast, the underlying muscles and the tissues in the arm pit. The court, after conclusive evidence, held that the defendant was liable for act of negligence.

In the case of Dickson Igbokwe & Ors v. University Hospital Board of Management, a patient delivered her baby but become restless thereafter. She was diagnose of puerperal psychosis and later had sedative given to her which made her to sleep. The nurse on duty was specifically instructed to watch the patient, but unfortunately, patient woke up, sneaked out of the hospital and had accident across the road. The defendant did not disprove the presumption of negligence. It was shown that if the nurse had kept an eye on the patient, the consequential accident would not have occurred. The court and the hospital (in a vicarious liability) were held liable for the tort of negligence.

In another case of Spadaccini v. Dola, a patient had respiratory arrest immediately after surgery. A call for immediate assistance was made to the senior consultant through the nurse in the reception. The nurse delayed in passing the call to the appropriate officer for about 13 minutes. Thereafter, the patient developed irreversible brain damage and the defendants were held liable for the tort of negligence. The jury awarded $400,000.00 as damages for the negligent act.

Further instances of clinical negligence include: failure to attend or give prompt attention to a patient; leaving item(s) of surgery inside the patient's abdomen; incompetent assessment of a patient; improper administration of injection; incorrect diagnosis of the condition of the patient; carelessness in giving wrong treatment; failure of communication.

It may be added that it amounts to negligence on the part of a nurse to file the result of laboratory investigation into a wrong folder. This action, unless discovered in time, may lead to wrong diagnosis and definitely lead to wrong treatment. Also, it is an act of negligence to serve drugs to the wrong patient or vice-versa. This may lead to complications or even death.
To be continued…