WHEN IS A MEDICAL DOCTOR GUILTY OF NEGLIGENCE IN NIGERIA

A. Introduction

1. The medical profession is the most delicate of all professions because they engaged in the most delicate of all arts, which is the art of saving lives. As many lives have been saved due to the due diligence of some medical practitioners, so many lives have been lost due to the negligence of some medical practitioners. The focus of this edition of Akintunde Esan’s Legal Illuminations is when a Medical Doctor can be concluded to be guilty of negligence.

B. General Features of Negligence
 

1. Negligence generally, in law, connotes an omission or failure to do something which a reasonable man, under same circumstance, would do or doing of something which a reasonable and prudent man would not do. Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; (2008) 13 NWLR (Pt. 1104) page 307; Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (Pt.1172) 67.
 

2. A reasonable man is a person who acts sensibly, does things diligently and takes proper, but not excessive, precautions. UITH V. Dr. Abegunde (2013) LPELR-21375(CA)per Ogbuinya, J.C.A. ,P. 39, paras. A-B. 
 

3. Negligence is a question of fact, not law, so that each case has to be viewed and decided from its peculiar facts. F.A.A.N v. W.E.S (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249) 219.Ltd.
 

4. In the case of Malister (or Donoghue) (Pauper) v. Stevenson (1932) AC 562/(2002) 12 WRN 10, the locus classicus on negligence, the erstwhile House of Lords invented three ingredients of negligence, which a Claimant must establish, thus:

a) that the defendant owed him a duty of care
 

b) that there was a breach of the duty; and 
 

c) that the breach caused him injury or damage.  
 

5. These three ingredients have since been judicially recognised and adapted as part of Nigerian jurisprudence on negligence. Agbonmagbe Bank Ltd. v. CFAO Ltd. (1967) NWLR 173 ; Abubakar v Joseph (2008) 13 NWLR (Pt.1104) 307. 
 

C. When a Medical Doctor can be found Guilty of Negligence
 

1. The great jurist, Lord Denning, in his book, The Discipline of Law, pages 237, 242 and 243 opined that : "A medical man, for instance, should not be found guilty of negligence unless he has done something of which his colleagues would say: "He really did make a mistake there. He ought not to have done it'
 

2. A medical Doctor cannot be concluded to be negligent simply because something happens to go wrong. He can only be found to be guilty of negligence when he falls short of the standard of a reasonably skillful medical man, “in short, when he is deserving of censure.”
 

3. In the case of Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173 where a needle got broken in the abdomen of the patient during surgical operation. It was held that the surgeons exercised their best medical skills and so not negligent.

4. The courts have long recognized that there is no negligence if a doctor exercises the ordinary skill of an ordinary competent man professing to have that special skill. The locus classicus of the test for the standard of care required of a doctor or any other person professing some skill is the direction to the jury given by Mcnair J in Bolam v. Friern Hospital Management Committee (1957) 2 All England Reports 118 at page 122. Per Nwodo, J.C.A. (P.39, Paras. A-F) Abi v. CBN & Ors. (supra).
 

5. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.

6. The above standard is the test for which a doctors' function of diagnosis and treatment is considered. Per Nwodo, J.C.A. (P.39, Paras. A-F) Abi v. CBN & Ors. (2011) LPELR-4192(CA).
 

D. Vicariously Liability
 

1. It is settled law that, a hospital authority is vicariously liable for the negligent acts or omissions of the whole of its staff. Igbokwe v. U.C.H.B.M. (1961) WNLR 173. 
 

2. In Unilorin v. Akilo (2001) 4 NWLR (Pt.703) 246, the parties were sued jointly and severally in tortuous liability, for negligent treatment of the respondent carried out by the 3rd and 4th defendants who were employees of the appellant as Medical Doctors. At the time material to the suit they discharged their duties as medical Doctors. The Court of Appeal held that, while the 3rd and 4th defendants were discharging their duties as Medical Doctors, they were not under control or management of the appellant. They are therefore individually liable for any tort they might have committed in the course of discharging such duty. J.U.T.H. v. Ajeh (2006) LPELR-7665(CA) per Tsamiya, J.C.A.(P.25 , paras. E-G)

WHEN IS A MEDICAL DOCTOR GUILTY OF NEGLIGENCE IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)