Talking Law With Ivie Omoregie: Medical Negligence

Sometime last year a friend of mine asked me to accompany her for a Brazilian Butt Lift (BBL) procedure.

Body augmentation procedures are becoming more and more prominent in Nigeria, from non-invasive procedures to full body reconstructions. Everyone knows one particular doctor in VGC who has quickly grown in popularity due to the amazing results he has consistently delivered.

Unfortunately, my friend decided to use another doctor in Oniru who I didn’t know much about, but I had to respect her wishes.

The whole ordeal was possibly the scariest thing I have ever experienced. Not the BBL procedure itself; to be honest, I know a few people who have done this, none of them have ever regretted their actions and I believe it is a personal choice everyone is entitled to make.

However, this particular doctor had some unorthodox ways; from keeping his patients under general anesthesia for 7 hours instead of the industry norm of 2-3 hours to administering addictive painkillers to sedate patients without being truthful to the next of kin. The thing that completely freaked me out was when he rolled out a patient from the theatre at 4:37 AM. At this point, I just started crying. His first procedure was from 12 PM – 7 PM, and the second procedure was from like 9 PM – 4:37 AM.

This made me think about the laws regulating medical negligence in Nigeria, and the rights of a patient should anything go wrong. I felt the need to write this article to shed more light and stress the importance of understanding your surgeon, regardless of jurisdiction.

Medical Negligence

The main principle governing medical negligence in Nigeria emanates from a judgment given by Lord Denning in his book, “The Discipline of Law,” and it states that a medical practitioner should only be found guilty of medical negligence where it is clear to all his other colleagues in the industry that he categorically did something which he ought not to have done.

This principle acknowledges the fact that when dealing with sick people in a hospital, there is always a risk of having adverse results, no matter the extent of care and diligence exercised by the practitioner. Every surgical operation involves risks. Thus it would be wrong and unfair to hold medical practitioners and their establishments liable for every mishap that might have happened under their watch.

Lord Denning stressed that it would be disastrous to any community if every medical practitioner, whilst taking care of his patients, was forever looking over his shoulder in case someone wanted to claim an action for negligence. Thus medical practitioners should not be found negligent simply because something went wrong.

That being said, medical practitioners do have a duty of care to their patients, and when they fall short of this duty of care their patients are entitled to compensation. Generally, medical practitioners will only be found negligent when they fall short of the standard reasonably expected of someone of their medical training. However, factors to be taken into account will vary from case to case.

Preliminary Issues To Consider

Usually, only the victim of the negligent act may sue for compensation, with exceptions being instances where the victim died as a result of the negligence or where the victim is a minor. In these instances, their next of kin may sue on their behalf.

A person will generally have a claim if any of the following occurs: –

• They are misdiagnosed;
• They are diagnosed properly but are given the wrong medication/treatment;
• They are operated on and foreign objects are left in their body;
• Where the doctor departs from industry norms in the way in which he carries out certain procedures; and the list goes on.

Persons wishing to make a claim have 3 years from the date they first received the negligent treatment or the date when it was first discovered that the treatment was negligent. Where this time frame has elapsed, the action will be deemed as statute barred and the victim deemed by the courts as having slept on their rights.

The amount of compensation awardable will again vary from case to case. However, the courts will take into account factors such as severity of injury, age, losses caused as a result of the negligence, and employment status of the victim. Unfortunately, this will mean that even where there is a successful outcome in the courts, middle class and upper-class people have a higher value placed of their lives than the working class masses, who are the most affected by medical negligence.

Attaining Judgment For Medical Negligence

On a number of occasions, I have discussed systematic errors with the Nigerian Judicial System. The harsh truth is that the masses lack adequate access to good legal representation, as well as knowledge on how to even enforce their rights. Aside from this, let’s not forget the challenges in getting timely judgments generally in Nigerian courts. All these factors make successful prosecution of a medical negligence case tedious and idealistic. Even where a victim successfully manages to get the necessary judgment, enforcement of judgment damages is another conversation entirely.

The body responsible for reviewing alleged cases of medical negligence in Nigeria is the Medical Dental Council of Nigeria, MDCN. However, for a very long time, there has been no council at the MDCN, thus there appears to be a 3-year backlog of cases waiting to be attended to. Unfortunately, this has meant that any medical practitioner facing disciplinary action has continued to work and do the exact same things that might have been deemed as being negligent in the first place.

Conclusion

The truth is with the backlog currently being faced in the Nigerian court systems, the reality of litigation in Nigeria is that it is long, expensive and tedious, and might not yield the expected results. Unfortunately, when you look at this in light of the fact that the MDCN might not even have a valid council sitting to attend to cases of medical negligence, you appreciate the extent to which it is God’s wrath which is cautioning these practitioners.

It is my firm belief that this particular doctor is completely negligent in the fact that he is doing something, which from my understanding, his peers have warned him against time and time again. That is keeping people under general anesthesia for 7 hours when it is supposed to be a 2-3 hour procedure. The procedure itself has its inherent risks, so I was stunned to discover this medical professional incurring more risks that are completely unnecessary. I am not even going to talk about the cocktail of opioid pain sudation for a procedure for which they prescribe ibuprofen in the states.

This article has not touched on the legal ramifications of the informed consent agreements most medical practitioners make one sign prior to doing any serious procedures. I believe that one is yet another article entirely.