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Law Review: Medical Negligence (2)

Saturday, 11 July 2015 00:00 Written by

Last edition we discussed instances where a medical officer could be said to have acted in negligence as far as clinical practices are concerned. There are instances when a clinical officer may not have acted in any way that could have rendered him/her liable, yet some suit-happy clients or relatives may decide to embark on a mission to “punish” the officer for what they have concluded to be negligence on the officer's part.

In such cases, such officers have protection under the law. Foremost, in any case, he/she is presumed by the law to be innocent until proven guilty according to Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria. In fact, he/she has right to defend himself/herself before the court.

The following are some technical points which, if effectively raised to the court's conviction, will exonerate the officer from any charge:                                                     

i. Doctrine of Necessity
This is the situation where a person is compelled to act in a particular way by circumstances beyond his control and against his better judgment. Generally, necessity is a kind of defense that can be pleaded in a criminal or tortuous case.
However, this defense is justified and applicable only in lesser harms than commission of murder. Killing of a person cannot be used as a defense for lesser or even homicide act.

There are many situations that may warrant the resort to the doctrine of necessity in a clinical practice. For example, a fire outbreak occurs in the ward, and patients were trapped inside the inferno. A nurse, who in an attempt to rescue the patient, uses such force to prevent death as far as possible, is covered by the doctrine. Even if such patient sustains fracture, the doctrine of necessity will serve as her defense in case the relatives of the patient resort to legal suit. In other words, if the family of the patient sue her to court for criminal assault or infliction of grievous body injury because of this, she may plead act of necessity as a defense to prevent greater evil.

Under the law of tort, necessity as a defense is considered as a privilege that may relieve a person from liability for trespass or conversion if that person, having no alternative, harms another's property in an effort to protect life or health. Thus, a nurse who breaks into the locker of another patient to carry ventolin inhaler to save the life of another asthmatic patient, can plead the defense of necessity if she is accused of theft. Although she may be accused of taking others' property without permission, to save life is more important than keeping an unused inhaler at that time.

ii. Act of God
This is equally referred to as act of providence; act of nature, superior force, irresistible superhuman force etc. It is an inevitable event not anticipated, an extraordinary circumstance which could not be foreseen and which could not be guarded against.

For example, a patient who is on admission in an orthopaedic hospital for fracture of the fingers was one night observed at once to have slumped and died instantly. His medical history before admission reveals no evidence of head injury, heart, kidney, liver or other systemic diseased condition. On admission, the result of all the medical tests –like blood, urine, blood sugar etc., were normal. A further review of all the medications he is taking does not show any reaction to any of them. That kind of death in medical parlance is said to be idiopathic. That is, the cause of the death is unknown.

In that kind of situation, if the relatives feel aggrieved and go to court, the nurse can plead that the cause of death is an act of God. Foremost, she will start by laying the foundation by putting all the records of vital signs she has done, documented and found to be normal before the court and conclude by saying that the death is beyond clinical explanation, which cannot be traced to any act of negligence on the part of the nurse.

Therefore, where supernatural events – like tsunami,  earthquake, thunderstorm, flood, tornado, severe snowfalls etc., occur and was so sudden or unexpected that  no human foresight or precaution could anticipate or prevent it, in such a situation the act of God will provide as a defense to tortuous act. This is the position of the court in the case of Panalpina World Transport (Nig) Ltd v. NNS line Ltd.

Thus, a nurse who is nursing a patient with sickle cell disease (SCD) and receiving blood transfusion, cannot be blamed if the blood suddenly clots in the process of transfusion (particularly if proper cross matching was done, and the right blood and amount was given to the patient). A sudden clotting of blood during transfusion and under normal circumstances can only be referred to as Act of God.

iii. Self-Defense
Self-defense is a legal use of force employed by the defendant to stave off danger of bodily harm attempted by the assailant.
For example a psychiatric nurse is taking care of one of her aggressive or violent patients, when the patient suddenly rises up and was pursuing her with a knife. If in the course of this problem the nurse succeeded in fending off the weapon and the patient sustains fracture of the hand, she can plead self-defense before the court. However, before the pleading of self defense can succeed or be accepted by the court, two requirements must be met.

These are:-
a) The use of force must have been necessary:
A female nurse who is apprehensive that she may be raped by a patient may use such force to repel the assailant. In this circumstance, the use of force here is justifiable and necessary. On the other hand, such nurse cannot justify the use of force to break the neck of her patient who threatened to touch her with a harmless thing like paper. Similarly, it is not a necessity to use excessive force to fracture the hand of a patient or break his neck when he only insults a nurse or make mockery of her.

b) The use of force to repel the attack must be reasonable:
It will not be regarded as reasonable use of force where a nurse strangulates a patient to death because he slapped her on the face.
In addition to the above requirements, the defendant must not have provoked the patient to carry out the attack. Of course, if a nurse calls the patient with his disease condition (thereby provoking him to assault her), she cannot claim to be acting in self-defense by inflicting grievous bodily injury on the patent in return.

In order not to create room for ambiguity or wrong interpretation of the law, the Criminal Code Act tries to classify self-defense into two:
1. Self-defense against Unprovoked Assault: - This is provided in Sect. 286 of the Criminal Code Act which allows the defendant to use such force (so far it is not intended) to repel attack even if it may lead to death or grievous bodily harm.
2. Self-defense against Provoked Assault: - Sect. 287 emphasizes that in a provoked assault, the defendant will not be criminally liable for using such force to repel the attack only if he anticipates death or grievous bodily harm. Where he is not anticipating death or grievous bodily harm from the assailant, she cannot claim to be acting in self-defense by using unjustifiable force against him.

Generally, for self-defense to be regarded as an excuse before the court, Section 32(3) of the Criminal Code Act provides that it must be an action “reasonably necessary” that threatened his life or those of other persons in his presence. The Penal Code, on the other hand, particularly section 29-67, dealt with this issue as a right of private defense in the following situations:
* Section 59 made it not an offence to lawfully exercise one's right of private defense.
* Section 60 provides that a defendant has right to defend his own body or body of other person affecting the human body and property.
* Section 61 permits right of defense against assault from people of unsound mind.
* Section 62 limits the use of force to not more than what is necessary.
* Section 63 provides that once a person has access to invite public authorities, he cannot claim to be exercising self-defense.
* Section 64 provides that there is no act of self-defense when there is no apprehension of death or grievous body hurt.
* Section 65-67 defines where it can be justifiable- like defense against death, house breaking, theft etc.
To be continued.

Issues in Medical Negligence

Sunday, 29 March 2015 00:00 Written by

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

Justice Delayed is Justice Denied

Monday, 02 February 2015 00:00 Written by

A Kano senior magistrate, Umma Sani Kurawa, expounds the causes of delay in the administration of justice in Nigeria