TORTIOUS LIABILITY OF MEDICAL PRACTITIONERS IN NIGERIA: AN APPRAISAL

CHAPTER TWO

NEGLIGENCE A3 THE BASIS OF LIABILITY

OF MEDICAL PRACTITIONERS

2.1 Introduction:

This chapter shall discuss the nature of negligence of medical practitioners and, some instances of tortious medical malpractices properly analyzed. The civil or tortious liability of quacks and native doctors shall also be properly analyzed, with a view to making useful suggestions. Meanwhile, before the Chapter begins properly, a medical practitioner may be defined as anyone who holds out himself as a person who undertakes the cure or treatment of human ailments, or anyone who undertakes to provide health care delivery.

2.2 The Nature of Negligence of Medical Practitioners.

According to Alderson B., in Blyth v. Birmingham Water Works Company Co. (1856)1 "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would do, or doing something which a prudent and reasonable man would not do." Simply put therefore, "negligence is the breach of a legal duty to take care which results in damage, urdesired by the defendant to the plaintiff."2 Negligence in medical practice ordinarily implies that the medical practitioner had the consent of his patient to treat him, but such treatment did not conform with the standards imposed on the medical practitioner by law. An action in negligence involves three basic elements: (1) the nature of the duty that the law

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imposes on the medical practitioner; (2) the alleged conduct that constitutes thebreach of that duty in the eyes of the law and; (3) the causal relationship betweenthe breach of duty and the injuries of which the victim complains.

The courts generally regard the relationship between patients and medicalpractitioners as contractual3. When a patient presents himself to a medicalpractitioner for medical care, and the medical practitioner proceeds to render thatcare, the law implies that a contract has arisen between the parties. It is fromthis contractual relationship that the duty of the medical practitioner to his patientarises. In medical professional liability litigation, the trend has been for thepatient to bring suit against the physician for alleged failure to use reasonablecare and that action is usually in tort. According to Halsbury's Law of England,4

A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered practitioner or not who does a patient, consult, owes him certain duties, namely, a duty of care in deciding what treatment to give and a duty of care in the administration of that treatment. The practitioner must bring to his task a reasonable degree of care. Neither the very highest, nor very low degree of care and competence judged, in the light of the particular circumstances of each case is what the law requires; a person is not, liable in negligence because someone else of greater skill and knowledge would have prescribed different way; not is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men.

The quotation above is a precise epitome of the essentials of the negligence of medical practitioners. This is a clear indication that a practitioner stands the risk of paying compensation at any time he acts below the standard required of a competent

5 practitioner of his class, experience and circumstance

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Consequently, if a medical practitioner holds out himself as a good surgeon, he must measure up to the standard generally approved or acceptable in the field of surgery (not a specialist in a particular area of medicine), then he is accordingly expected to measure up to the generally acceptable standard for general practitioners6. Therefore, the standard is not constant; it is dynamic and changes in accordance with the area of specialization of each doctor. Differences in circumstances and facilities at the place of work may also affect the standard required in each case. Thus, more efficient medical services may be expected. in a modern well-equipped hospital than a village medical center.

Under this head, we shall consider proof of negligence in civil liabilities of medical practitioners and some instance of negligence (Civil liabilities) of medical practitioners. 2.2.1 Proof of Negligence in Civil Liabilities of Medical

Practitioners.

The quantum of proof in civil action is a preponderance of probability. The plaintiff has to adduce evidence to show that the medical practitioner was negligent. Generally, in medical malpractice cases, it may be difficult for the patient plaintiff to prove negligence because he may not know what happened. In view of this difficulty of direct proof of fault and of the causal nexus between the fault and injury, the court may allow the plaintiff to rely on the doctrine of Res Isa Loquitur7. Literally, this maxim means, "The event speaks for itself". In its inception, Res Ipsa Loquitur was nothing but a reasonable conclusion from The circumstances of an accident that, the accident was probably due to the defendant's fault,

In England, however, the decision in Mahon v. Osborn", raised the issue whether the rule of res Ipsa loquitur only applies if the event is a matter of common experience, so that special experience of an expert is irrelevant. Boddard L.J. held that the doctrine applies where swabs have been left in the body of a patient after an abnormal operation9. But Scott L.J. thought that where the judge would not have enough knowledge of the circumstances to draw an inference of negligence, as in the case of surgical operations, the doctrine did not apply10. However, the Court of Appeal has held it to be prima facie evidence of negligence that a man, on leaving hospital after a course of radiography treatment to his hand and arm, had four stiff fingers and a useless hand11.

There are further requirements which must be supplied for the rule of resIpsa loquitur to apply, that, the plaintiff must prove not only that, (1) the event isof the kind that ordinarily does not occur inthe absence ofsomeone'snegligence, but also that it was caused by an agency or instrumentality within theexclusive control of the defendant. This is illustrated by the case of Scot. v. TheLondon St Katherine Dock Co.12, where bags of sugar fell on the plaintiff, whilehe was lawfully passingthe doorway of the defendant'swarehouse. Thedefendants called no evidence. Erie C.J. said:

There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servant and the accident is such that in the ordinary course of things does not happened if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants, that the accident arose from want of care.(2) The second requirement is that the accident was not due to any voluntaryaction or contribution on the part of the part of the plaintiff13. The effect of the last

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condition is that it may create some problems because the plaintiff is normally unconscious and does not know what he or the defendant happens to be doing. His natural bodily reaction or condition, which may have contributed to the final harm, is certainly neither wilful nor controllable or observable by himself in most cases and yet can absolve the medical practitioner from responsibility. It is therefore recommended that, the last condition should be abrogated. 2.2.2. Instances of Negligence (Civil Liability) of Medical Practitioners.

If a medical practitioner performs treatment to a patient in a way or manner, which is negligent, and thereby causing harm to the patient, the patient may institute an action against such a doctor to recover damages for harm suffered. Liability for negligence can only arise where there is a legal duty to take care either in contract or in tort14. This implies that for the plaintiff to succeed. in his case, he must prove that the doctor was negligent and this onus stands discharged if he can show that: (a) the doctor owed him a duty to use reasonable care in treating him; (b) that the doctor had failed to exercise such care, that is to say that he was in breach of that duty and; that the had suffered damage or injury as a result of the breach15. He needs not show that there was agreement between him and the doctor to avoid causing damage or harm before succeeding in his case. Authority for this proposition is the case or R. v. Bateman 16. inthat case, the appellant a panel doctor practicing in one town called Deptford, was convicted of manslaughter of a patient call Mary Ann Harding and was sentenced to six months imprisonment by the trial court for criminal negligence. He had actually been called in to attend to the patient on her confinement. After finding

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that her case was a difficult one, he first attempted unsuccessfully to make herdeliver by the use of instruments, after administering Chloroform; he then triedperform manual operation called "version", after an hour the child was borndead. Five days after the delivery of the child the patient was then very seriouslysick and was removed to the infirmary, where she died two days after. Thecharges preferred against him and for which he was convicted were: (a) that inthe performing of "version" he had occasioned an internal rupture; (b) that withthe placenta he had removed part of the uterus and; (c) that he had undulydelayed in sending the patient to the infirmary.

On appeal, his conviction for criminal negligence was quashed and was

instead convicted for civil negligence.The court, then observed with regards tocivil liabilities of doctors as follows.

If a person holds himself out as possessing special skill and knowledge,

and he is consulted as possessing such skill and knowledge by, or onbehalf of a patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward16.

Going by the above quotation, it becomes obvious that no contractual relation isnecessary, nor is it a requirement that the service be rendered for reward. Thismeans that the plaintiff in a malpractice suit needs not prove the existence of acontract or that the service was rendered in expectation of a certain rewardpromised before he can succeed. The reason for not making contract a conditionfor doctor's liability in negligence is not unconnected with the fact that there are

two ways in which a doctor may be held liable to his patient; one is through

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contract and the other is through tort. This means that if there is an agreement between him and the patient as to how to go about with the treatment, his liability may be based on breach of that contract. But where there is no contract, the his liability will be in tort. Therefore, here, the criterion it has been submitted is that since he is engaged in a kind of work that involves endangering some one's life, he is then automatically under a duty of care not to do anything that will cause someone, his life17.

There are many instances of civil liability or liability in negligence of medical practitioners. Some of the instances, which we are going to consider here are; improper diagnosis, treatment, drugs, x-ray injuries, anaesthesi surgery, blood transfusion and abandonment.

2.2.2.1 Improper Diagnosis

The mere fact that a physician has made an error in diagnosis is not enough, by itself to support a claim that he was negligent. A physician has a duty to use ordinary care and skill necessary to acquire all available data essential to a proper diagnosis. The patient is entitled to a careful examination as his condition and the circumstances will permit, with the exercise of such diligence and the application of such methods of diagnosis for discovering the nature of the ailment as are usually utilized by medical men of ordinary judgment and skill in that community or in similar localities18. First case, which relates to improper diagnosis, is the case of Pundey v. Union - Castle Mail S.S. Co. Ltd & Anor19. In that case, the plaintiff, a member of crew of the first defendants' steamship called Llaustephan Castle fell sick, complaining of

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rheumatism while they were on voyage from London to the east coast of Africa, via Cape Town. He was then examined by the ship's doctor, the second defendant, who prescribed treatment for him and also recommended that he be repatriated. The plaintiffs health further deteriorated. He was again examined by a specialist who discovered that the plaintiff was suffering from acute arthritis. The plaintiff them brought an action against the first and second defendants claiming damages on the grounds that the second defendant was negligent in his diagnosis and treatment. Evidence of a similar symptom of rheumatism by other doctors who examined him before his repatriation was however adduced.

The court held that the plaintiff, had not only failed to prove that the second defendant was guilty of any lack of care in his diagnosis or treatment but that, taking into account the symptoms then observed by him and his fellow doctors, the medical evidence confirmed that he had in fact prescribed the correct treatment. Even though the decision of the case as in favour of the defendants, it still demonstrates the principle that where a doctor is found to be negligent, he can be made to pay damages to the plaintiff for any injury he may have suffered as such. The medical practitioner in the above case escaped liability because there were evidences from other doctors who had examined the plaintiff before, showing similar symptoms of rheumatism; otherwise, he would have been found liable.

Where the facts and circumstances of a case show that there was an unequivocal instance of poor diagnosis, the courts are always ready to yield to the deserving cases. Thus, In Fortner v.Koch20, the plaintiff came to the

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defendant physician with a swelling on his knee and additional symptoms that might lead a physician to suspect a variety of conditions. The physician examined the patient manually, placed him on a diet, and injected a solution into his bloodstream. Severe injuries followed. It was shown at the trial that the usual practice among physicians in the community under these circumstances was not only to take the history of the patient but also to make an x-ray study, a blood test an a biopsy. These were not considered alternate tests. All of them were required. The defendant was held guilty of negligence for failing to make these diagnostic tests. In another case, Meyers v. Clarkin21, there was evidence that the surgeon diagnosed the case as a fracture of the upper third of the femur but failed to notice and or treat a break of the neck of the femur. This oversight resulted in additional operations and injuries. The physician was found guilty of professional negligence. In yet another case, Harriott v. Plimpton22, a physician was held liable for making an erroneous diagnosis of a venereal disease, which led to the breaking of an engagement to marry. Even in Nigeria, it was found through interviews that there are rampant cases of poor diagnosis, leading to death and aggravation of illnesses, but the victims hardly realize them and even when they do relies them, they do not litigate. This is so because most patient are poor and cannot cope with the heavy cost of litigation and others especially the Muslims from the Northern part who believe that every mishap is as a result of the will of God, which no human being stands to challenge. It is recommended that victims of medical negligence should always go to court to vindicate their rights. This will shape the conduct of unruly health care deliverers.

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2.2.2.2. Improper Treatment

A medical practitioner is neither a guarantor not an insurer of good result of a cure. The art and science of medicine, being what they are, there will always be poor results from treatment despite the fact that the highest degree of care is given. Thus, the poor result is not usually evidence in itself of negligence on the part of the medical practitioner. These principles were applied in the following cases. In Camon v. U.S23, civilian was on, in an Army hospital for varicose veins. An infection followed the operation and developed into a phagedenic ulcer, a rare and serious disease. It was held that the physician and the United States were liable for negligence. In yet anothe case, Chin Keow v. Government of Malaysia24, a doctor administered an injection of procaine penicillin to a woman as a result of which she died within an hour. Her mother sued in negligence alleging that the doctor had failed to inquire conduct any test to ascertain whether the woman was allergic to penicillin or not before injecting her with it. And that if he had conducted the test or made the inquiry, he would have found out that the woman had previously reacted badly to penicillin as a result of which her out patient card was endorsed with the warning Allergic to penicillin". The trial judge then held that the defendant was liable in negligence for failing to make the inquiry or conduct the tests. On appeal to the Federal Court of Malaysia, the finding of negligence was rejected. On further appeal to the Privy Council, however, the decision of the trial court was restored. The Privy Council while disagreeing with the Federal Court of Malaysia's view that evidence should have been brought from a medical witness of the highest

professional standing or that the evidence presented should have been supported by references to the writing of distinguished medical men, said, 'the test is the standard of the ordinary competent practitioner exercising ordinary professional skill, and on this the evidence was all one way .

26 On the other hand, in the Nigerian case of Kanu Okoro Ajegbu v. Dr.E.S. Etuk ,

th the deceased was admitted into the Onitsha Genera! Hospital on 16 of August 1961 by the defendant doctor who diagnosed a niptured appendix. He treated the deceased with antibiotics to localize the infection and perform an appendectomy on the 17th of August,

(i.e. the next day). Only one incision was made but it had to be extended to expose the

th appendix properly. On the 20 of August, the deceased was given an enema because his stomach was slightly distended. As it did not work, the nurse who gave it reported this fact to the defendant who instructed that a little more enema be given to him and that if it failed, a flatus tube should be used. The second enema again proved ineffective. Upon the doctors further directives that a flatus tube be used if the second enema did not prove successful, flatus was then resorted to and a fllatus tube was accordingly inserted and all the enema and air were discharged. The deceased later died on the 21st of August 1961. There was some evidence that the death might have been due to delayed chloroform poisoning. However, no postmortem examination was conducted to establish the actual cause of death.

A dependant of the deceased sued the defendant under the Fatal Accident's Act 1961, claiming damages for the death, which the dependants attributed to the negligence of the defendant. The particulars of the negligence

were: (1) that there was gross negligence in the actual performance ofthe operation which was said to have lasted for about three and half hours and that there were incisions; (2) the defendant refused to attend to the deceased after the operation because he did not come into the hospital as the defendant's private patient; and, (3) that the deceased was overdosed with chloroform thereby, setting on chloroform poisoning.

On the first allegation, the court found that the operation actually lasted for about one hour only and that only one incision was made. The court also held that although the administration of the first enema was a negligent act, it was not the doctor that ordered it and thus, cannot be held liable for its consequences and that in any event the enema and gas were later discharged.

On the question of neglect raised in ground two the court found that it was not true and in addition there was the fact that there were only two doctors attached to the General Hospital, which was far inadequate.

On the allegation of poisoning through over-dosed chloroform the court found that even though there was medical evidence that the symptoms before death were consistent with delayed chloroform poisoning, the witness was not categorical on this because no postmortem examination was conducted in order to ascertain whether or not it was the actual cause of death. It was finally decided that the plaintiff had failed to prove his allegations, where upon, his claims failed as well.

It would appear that on factual grounds there would have been a strong case against thedoctor relating topoisoning by overdosechloroform had

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postmortem examination been conducted to ascertain the cause of death. The decision of the court in this case was proper because, it is the general principle of law that he who alleges, must adduce cogent evidence to prove. It was, therefore, the responsibility of the plaintiff to order for postmortem, to garner evidence for postmortem, to garner evidence for his case. With due respect to Saleh Mohammed, contrary to his view that the doctor ought to have advised the plaintiff to submit the body of the deceased for posmortem27, it is not and was not the responsibility of the doctor to facilitate the case of the plaintiff. It is thefore submitted that, in the event of any allegation of negligence leading to injuries or death, proper tests must be ordered to be conducted by the plaintiffs to categorically ascertain the causes of the injuries or death.

The duty of a dentist to exercise due care and skill in his treatment of his patients is the same as that of a surgeon or a physician28. However, leaving tooth in the jaw after an extraction and fracturing the jaw during an extraction are not themselves evidence of negligence against the dentist, but he will be liable if he did not notice the said dislocation or further dislocation in his subsequent examinations of the patient29.

Nurses also owe a duty of care to persons they treat professionally. A nurse would be liable if she negligently carries out the following acts:

1. Administer an overdose of dangerous drug owning to a mistake in reading the amount ordered by the doctor.
2. Scalding a patient with boiling water30. It should be noted that from the result of our questionnaire, patients especially pregnant women during ante natal clinic

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sessions and during delivery have been unnecessarily scalded by nurses andward servants. It is submitted that hospital management should organize ,horttraining courses in law of torts, to educate medical practitioners on their legalresponsibilities towards their patients. This will minimize malpractice suits and itsattendant huge financial costs and the redeem the image of the health careproviders.

2.2.2.3. Improper Administration of Drugs

As every physician, pharmacologist and nurse or ward servant know, the use of drugs always involves at least some remote possibility of unfavourable reaction of hypersensitivity. Not only may a patient's intrinsic allergy to the drug cause a reaction, there is also the possibility that the amount of the dosage, the mode of administration or even the speed of injection can cause an unfortunate reaction. Although, a great number of these types of reactions are unpredictable, there are occasions when a physician, through proper medical practice, particularly, in reviewing the past history of the use of the drug can predict (foresee) the reaction to a particular drug31.

In addition to those deriving from drug reactions, other liability situations in the use of drugs may involve choice of the wrong drug for the patient's condition, over dosage, or infections that follow injections and results from the use of unsterilised equipments, or solutions32. Below are summaries of cases of negligence involving the administration of drugs. In Whitefield v. Daniel Construction Co33, the plaintiff sustained a minor laceration of scalp when in red on the job. He was sent to his employer's physician, who, after suturing the

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laceration gave to the patient capsules containing 11/2 grains pentobarbital to be taken for pain. Pentobarbital is a barbiturate and a sedative. The patient was given no instructions as to use of the drug. The fact that it might put him to sleep or affect his faculties and that the number of capsules should be limited, were not mentioned to him. When driving home, the patient drove his struck off the road into a field, later he drove his truck off the road again and was killed. It was held that the death was a result of the patient taking the drug improperly prescribed by the physician and that the employer was liable for death benefits under workmen's compensation.

In the Nigerian Supreme Court decision of University of Nigeria Teaching Hospital Management Board and others v. Hope Nnoli34, Hope Nnoli, working with the U.N.T.H, was the only qualified chemist in the compounding unit for her employer at all times material to this case. An unqualified pupil pharmacist named Mr. Nwuzor, who was then undergoing his internship with the hospital, was posted to her unit. Being on internship, Mr. Nwuzor was not supposed to compound medicine on his own without supervision. On 20th February 89, Mr. Nwuzor allegedly compounded chloroquine syrup, which caused the death of children aged between one, and four years who took it. Postmortem examination confirmed the cause of death. Analysis of the syrup by the central Drug Control Unit of the Federal Ministry of Health revealed that the said chloroquine syrup contained about eight times more chloroquine phosphate than a norma! dose. Such overdose, it was deciphered, is dangerous and liable to result in deaths of children between one and four year. Sequel to the deaths of the children, there

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was a public outcry and the Management Board of Teaching Hospital conduced an investigation to ascertain the person or persons involved or responsible for the overdose. And it was accordingly Nnoli and Mr. Nwuzor who were found

liable in negligence.

The above two examples, as pitiful as they are, remind us that extra-care and caution must be taken or encouraged by employers to be taken by medical professionals where they are discharging their responsibilities. It is therefor recommended that where an employee performs his duty recklessly, leading to medical malpractice, apart from paying damages, the employers should also ensure that appropriate disciplinary measures are taken against them. From the findings in our questionnaire, the issue of drug mal-administration is a common phenomenon amongst medical practitioners in Nigeria. It is also recommended that, in order to curb such a malpractice, professional bodies should have an input with a view to taking disciplinary actions against professionals who exhibit or are found to have exhibited such unpardonable levels of indiscipline and negligence.

2.2.2.4 X-Ray Injuries:

The use of x-ray has for longtime been a cause of multiple professional liability claims. Radiologists are more likely to be involved in this kind of personal injury actions than are many other medical specialist. Most of the complaints here involve therapeutic uses of x-ray, allegedly resulting in burns, fibrosis of internal organs, sterility or prenatal injuries. There are also numerous cases that involve a claim of insufficient diagnosis, the physician failed to use the x-ray as a

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diagnostic aid and thus, failed to learn of a fracture or other condition35. The most typical of the cases here, is Farrara v. Gallucio36. The plaintiff, suffering from bursitis in her right shoulder, received series of x-ray treatments from the defendant radiologists. During the treatment, she experienced nausea. Subsequent to the seventh treatment, her shoulder began to itch, the skin turned red, blisters formed and then ruptured and the skin peeled, leaving the raw flesh of the shoulder exposed. Scabs formed and lasted for several months. One scab lasted for several years. Her condition was diagnosed as chronic radic dermatitis caused by x-ray therapy. A judgment of £25,000 against the physian was affirmed. Of this verdict, $15,000 was for mental anguish that the plaintiff suffered as a result of her fear of developing cancer from the burns ("Cancerphobia"), a dermatologist having allegedly told her that such cancer might develop.

It has been found from interview with medical practitioners that injuries arising from x-ray therapy are common in Nigeria, but because of ignorance and illiteracy, victims hardly notice the injuries and even when they do they hardly have the means to consult specialists to ascertain the cause. Awareness programmes are therefore recommended in order to educate potential patients of x-ray therapy on their rights.

2.2.2.5 Anaesthesia

The administration of anesthesia is one of the sources of litigation in medical civil negligence. It could be claimed that a particular anesthetic agent was given in excessive dosages, either because of the patience low tolerance or

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because of a failure to recognize complications demanding reduction of the dose. Disregard of sensitivity to the anesthetic is often claimed as a source of damages. There are very many cases alleging complete paralysis following the use of a spinal anesthetic. Also, errors in the use of anesthetic gas machines have been involved in cases of asphyxiation. The breaking of the needle used to inject anesthetic has given rise to claims, as have injuries to the teeth and mouth following inhalation of anaesthetics37.

Inherent in the anesthetic situation is the dreaded "cardiac arrest", where in the medical practitioners are confronted with the tragic dilemma of the so-called 4 to 7 minute "eternity," within which to attempt to resuscitate the patient3. If such attempts bring back the body but not the mind (i.e. permanent brain damage from cerebral hypoxia and/or anoxia), the expense involved in keeping and in maintaining such a person will be too enormous to bear. In a situation of this kind,and malpractice suit against a Medical Practitioner may run into very large figures39.

A typical American case involving negligence in the use of anesthetic is

Weinstein v. Prostkoff40.In the case, an action was brought by the administrator

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of the estate of the deceased to recover damages from the attending physician, the nurse anesthetist, and the hospital for death allegedly caused by negligence involving anesthesia during the delivery of the deceased's child. A verdict in the amount of $60000 was returned against the physician. The jury found that the nurse and the Hospital were not negligent. The decision in favour of the nurse and the hospital were reversed on appeal on the grounds that since the physician

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failed to properly supervise the administration of the anesthesia, the decision absolving the nurse, who administered the anesthetic and the hospital employer of the nurse, were contradictory. This is good law because it is a fundamental principle of law of torts that one should not be allowed to benefit from his own wrongs.

Meanwhile in Nigeria there is the case of Kanu Okoro Ajegbu v. Dr. E.S.

Etuk41. In this case, the deceased was admitted into the Onitsha General Hospital on 16th August 1961, with a diagnosis of ruptured acute appendicitis by the defendant doctor. He developed complications and died. The dependant of the deceased sued the defendant for negligence, alleging that the operation lasted three and half hours instead of 45 minutes and that there were two incisions instead of one. They also alleged that the defendant did not attend to the deceased because he did not come in as his private patient. It was alleged that there was an overdose of chloroform or anesthesia and this was established as a matter of fact. The court, however, acquitted the defendant on procedural grounds in the sense that postmortem examination had not been conducted to establish the cause of death. This decision seems to have been properly grounded because anesthetic death are physiological and the evidence disappears with death. At postmortem if death is caused by anesthesia, the odour of the anesthetic agents may be unmistakable42.

2.2.2.6 Surgery

Surgery is a very difficult area of medical practice. It is undoubtedly the one single greatest source of professional liability suits. Surgical problems may

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arise, among other ways, from the diagnosis of the referring physician or from the diagnosis of the surgeon. Generally, the surgeon is not expected to make an independent diagnosis. The requirement of ordinary care is fulfilled by his accepting the diagnosis of the referring physician. Assuming that the latter is a physician of good reputation and that there is nothing apparent about the patient's condition to suggest the likelihood of an erroneous diagnosis. Surgical mishaps may arise from the inadvertent cutting or tearing of tissues. However, such accidents do not necessarily indicate negligence on the part of the surge since the cutting or tearing may have been the result of anatomic distortions, either natural or brought about by disease or prior surgery. The medical practitioner in the exercise of due care will not necessarily be aware of such anatomic distortions in time to avoid inadvertent cutting sometimes, the damage resulting from such cutting or tearing is recognizable at once and at other times, it may not appear for a period of years44.

Leaving foreign bodies in the patient, such as sponges, gauze, needles, instruments and swabs, gives rise to the a considerable number of claims. In such cases, the courts apply the doctrine of Res Ipsa Loquitur, under which negligence can be proved by circumstantial evidence. Thus, in Hoking v. Bell45 a surgeon was held liable in negligence for leaving a ward of surgical gauze in a patient's body after an operation and for leaving a portion of drainage tube in the site of an operation. Also, in Mahon v. Osborne46 swabs were left in a patient after operation, the court allowed for the application of the doctrine of Res Ipsa Loquitur and the defendants were held liable. In Maynard v. West Midland

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Regional Health Authority two consultants believed that the plaintiff was suffering from pulmonary tuberculosis but also considered the possibility that she might have Hodgkins disease. She was in fact suffering from tuberculosis. Tests were carried out, but it was decided to operate before the results of the test were known. The plaintiff claimed damage to the vocal chords as a result of the operation. It was held by the house of Lords that the defendants were not negligent, as they had conformed to a practice approved by a responsible body of medical opinion. Where there are conflicting practices (as in this case), negligence is not established by proving that the defendant has not flowed one practice.

From the above decision, it appears that the principle of liability based upon fault, is receding at this point. When it comes to professional liability, the corresponding terms fault and negligence no longer signify mere careless conduct; rather they are employed to signify failure to observe not the care generally observed by the average diligent man, but that level of care which, in line with good professional practice, is deemed necessary in order that exercise of the profession may be regarded, as diligent.

Surgical mishap is a common phenomenon of medical negligence in Nigeria, leading to numerous surgical deaths. Investigation from questionnaires has revealed that a wide range of problems, including poor or absent documentation, deficiencies in essential services, surgeons operating outside their specialty and the use of poorly trained and supervised locum are causes of surgical deaths. It is, therefore, recommended that hospital managements,

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should improve onthe available surgicalfacilities, obtain modernsurgicalinstruments, employwell trained staffand specialists and re-train themperiodically, in order to enhance efficiency and minimized the rate of surgicalmishaps.

2.2.2.7 Blood Transfusion.

Claims in negligence for medical liability in blood transfusion arise in several different ways. One type of such claims arises from the use of mismatched blood. This can be caused either by laboratory errors in cross-matching or by clerical errors whereby blood intended for one patient, is given to another. Administration of mismatched blood can produce a variety of injuries, including shock, serious kidney damage and even sudden death. Blood transfusions have also been responsible for serious infections being transmitted, such as, Acquired Immune Deficiency Syndrome (A.I.D.S), Veneral diseases, jaundice hepatitis, etc. In the United States of America, suits involving transfusions are move frequently filed against a hospital than a physician. Thus, in Necolayff v. Genesee Hospital49, the plaintiff was recovering from a surgical operation. An intern and a nurse entered her room and told her that she was to have a blood transfusion from her daughter. Although she protested, informing them that she had no daughter, they nevertheless administered the transfusion. As a result she became seriously ill and temporarily insane. Actually, the transfusion had been intended for another patient. The court held the hospital responsible for the negligence of the intern and the nurse.

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Another type of claims here, is related to use of mismatched blood. This is sometimes caused by laboratory errors. Thus, in Berg v. New York Society for Relief of the Ruptured and Crippled50, the plaintiff, who had suffered from rheumatoid arthritis, entered the defendant hospital for a course of treatment that included the administration of 500ml of blood. Prior tc performance of the transfusion, a sample of the plaintiff's blood was sent to the hospital's laboratory for analysis. A technician who tested the sample, reported that her blood was Rh-positive. She was transfused with Rh-positive blood, but the transfusion war stopped when she started to develop an adverse reaction. A few months later she was discharged from the hospital, she became pregnant and was directed by her family physician to a laboratory for the purpose of determining her Rh factor. It was then discovered that she was Rh. Negative. She later gave birth to a stillborn foetus and was unable to have children. Suit was brought against the attendant physician and the hospital. The case against them however on the basis of the technician's negligence succeeded.

It appears that the courts are more willing in granting judgments against hospital to the exclusion of their employees, because the consequences of mal-administration of blood transfusions are grievious and therefore, attract huge sums by way of damages. It therefore, became necessary to hold the hospital liable because they are solvent enough to settle the gigantic claims.

With respect to Nigeria, it would appear from the instance below that, just like in the United States of America, the responsibility for mal-administration blood transfusion, is always shouldered by the hospital management. Thus, in

the instant case, one Mr. Ude Oche, engaged the services of a solicitor who wrote in April 1998 to the Ahmadu Bello University Teaching Hospital Management, claiming a sum of N2.5 Million, being special and general damages, as a result of negligence and breach of duty in blood transfusion leading to the death of his wife on the 23rd of December, 1997.

He alleged that, following the doctors prescription for surgery, blood grouping and cross match was performed after undue delay. He expressed dismay over the apparent authority and arrogance of Mr. Andrew, the 400 level student of Laboratory technology who conducted the test, after a very considerable delay. After the test, Mr. Andrew came up with AB RH positive result. But Mr. Oche informed the staff that the correct blood group of his wife was O RH positive and not AB RH Positive. The Doctor, relying on the laboratory result transfused the AB RH positive to which the wife reacted badly. At this point, another laboratory staff was compelled to repeat the test, which confirmed O RH positive and not AB RH Positive. Although this correct group was eventually transfused, the wife never really got over the reaction until she passed away on the morning of 23rd December 1997.

In 1998, the A.B.U.T.H.'s solicitors entered into negotiation with the complainant's solicitors. A settlement out of court was reached in which the hospital paid a certain amount of money to the complainant and various disciplinary measures were meted against the hospital staff responsible for the

injury51.

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It is recommended that in view of the fact that the health consequences of poor blood transfusions could be fatal, medical practitioners and hospitals are advised to be very careful in selecting competent and well qualified laboratory technicians. This will avoid or minimize the rampant suits in negligence arising from blood transfusions.

2.2.2.6 Abandonment

Where medical practitioners abandon their patients, that is, neglect them in the course of treatment; they may be liable in negligence. Thus in the case of Barnett v.

52,

Charlsea And Kensington Hospital Management Committee a casualty officer of a hospital was held to have been negligent in refusing to see a patient who had presented himself at the casualty Department complaining of Vomiting but had referred him to his own doctor. The can was in fact suffering from Arsenical poisoning. Similarly in Dickson Igbokwe v. U.C.H. Board Management53, the deceased was admitted to a 4th floor of the UCH. Where she gave birth in December 1958. She was suspected of being mentally deranged and was placed on sedatives. The following day, she was missing from her bed and was found dead on the ground 70 feet below. The husband sued the U.C.H. Board for neglect. The U.C.H. authority agreed that if someone had been assigned to look after her, the unfortunate event may not have happened. The plaintiffs action was upheld and a sum of two hundred and fifty pounds was awarded as damages to the woman's children. The husband was excluded from benefiting because he could not show evidence that he had done native marriage with the deceased.

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2.3 Civil Liability of Quacks and Native Doctors.

A quack or a native doctor is one who is not qualified under the Medical and Dental Practitioners Act54, to practise as a medical practitioner in Nigeria. Any unqualified or an unlicensed person, who undertakes medical treatment is required by law to exercise the same degree of skill, knowledge and diligence, as a person qualified to practise the profession is required to exercise. His guilt will not arise merely because he is unqualified or because he is not authorised to practise, but also if he falls short of the standard required of a qulified

practitioner55.

In the case of R.v. Chigbata Olise, the accused was indicted before the

Warri - High Court on three count charges, viz; Manslaughter of one Justina Onwuzulike contrary to section 325 of the Criminal Code (C.C), Cap.4; being in possession of poisonous matter without lawful authority, contrary to section 59 of the Pharmacy Ordinance, Cap. 69, and giving injection of a drug into the skin of the said Justina Onwuzulike, the accused not being a qualified person to whom licence had been given for that purpose contrary to section 34 (1) of the medical Practitioners and Dental Ordinance, Cap. 130.

The facts of the case went thus: The deceased and her husband approached the accused on the 29th August 1959 and asked him if he could treat the deceased who had earlier complained of chest and heart problems. The accused agreed to treat the deceased for a fee of £9,17,3d; £6 which was paid in advance. After the husband had left the deceased with the accused, the latter attempted to give the deceased an injection at the back of her hand using a

34

hypodermic syringe and needle. When this was not possible, he gave her the injection in the shoulder area. The deceased died later that evening. When he was later asked by a councilor of that area whether he treated the deceased, he (accused) admitted giving her injection and said that he was a doctor. The report of the doctor who - did postmortem examination of the deceased showed that she died of acute poisoning from a drug injected into her body. When the house of the accused was searched, poisons in part III of the First Schedule of the Pharmacy Ordinance were found. The accused admitted that the poisons were found in his house but said they were put there by the relations of the deceased and denied giving the deceased any injection. He did not give any evidence that he was a licenced doctor under the Medical Practitioners and Dentist Ordinance or that he had any lawful authority to be in possession of the poisons. The court held that:-

1. Since that accused had not shown that he had lawful authority to be in possession of the poisonous materials, he was guilty of being in possession of them for unlawful purpose,
2. If a person without medical training takes on himself to sidminister medicine that has dangerous effect and such medicine destroys the life of another person, he is guilty of manslaughter and recklessness. The accused was accordingly convicted of all the two-counts charges.

In yet another case, that is R.V. Samuel Abengowe 56, the deceased was taken to the appellant for treatment. She was then suffering from sores on her back and breast, which had lasted for about three years. The appellant, an

35

unqualified doctor filled a syringe into the right buttock of the deceased and pumped the liquid into her. The deceased fainted immediately. A day after that, her husband found that her right leg and buttock were swollen and the buttockS were peeling, looking red. She died the next day. The incidence v. was not reported to the police until about three weeks thereafter. After conducting post-mortem examination, the doctor reported that the deceased had been suffering from syphilis for some years and according to him, this would render her susceptible to poison. He then removed some part of her liver and kidney and sent them to Government analyst, who examined them and made a report.

At the trial, the report of the Government analyst was rejected by the trial court as inadmissible. No reasons were given for their inadmissibility. Judgment was passed against the appellant. The Appellants appeal succeeded on the grounds that although it was obvious from the records that the accused was tried for manslaughter by negligence, it was not clear what particular form of negligence was relied on by the prosecution to disclose with certainty and precision and without inconsistency the particular form of negligence alleged. The prosecution therefore, failed on appeal for want of proof57.

It would appear from court decisions that native doctors are placed on the same level with quacks with regards to negligence. A case in point, which illustrates this, is the case of R. v. Ezeoca58. In that case, the appellant, who was a native doctor, was charged in the Supreme Court of the them Abba Judicial Division with manslaughter. The prosecution's case was that the appellant gave the woman three injections at intervals of seven days for which he charged #35 a

36

time. Shortly after the last injection, the deceased became very ill. She diedeight days later. The appellant asked her sister not to report the matter. After hisarrest, he made the following statements, which he later denied in defence.

I did give injection to one Owerri Aba woman in the year, 1943 as I was passing by the road. The woman was very sick. She asked me to inject her with my injection. She said she had tried many other injections. I did not agree at first but she compelled me. I warned her very seriously . still yet she said I would not be responsible for whatever might be the result. I told her that she would pay H25.5, when she got better, or leave paying anything if she did not recover. I did it by favour

In his defence at the trial, he denied injecting her as mentioned in his statement to the Police above and instead claimed that action was instituted against him by the family of the deceased out of revenge as a result of another matter unconnected with death of the deceased. An analyst report, which indicated that death was caused by loxaemia due to bismuth injection was accepted by the court. Then the court after coming to the conclusion that the prosecution's case

had been substantially established convicted the defendant for the offence of manslaughter.

On appeal, it was held that there cannot be the slightest doubt that it had been established that the accused was guilty of criminal negligence and rightly convicted of manslaughter. His appeal was therefore, dismissed. In yet another case, R. v. Yaro Paki and another59, the first accused was charged with manslaughter for operating on the tonsils of his patient who subsequently died. The second accused who was charged with aiding and abetting by holding the patient's head during the operation, was discharged and acquitted on the ground

37

that the operation on the tonsil's by the first accused was not itself an unlawful act like an operation to bring out abortion.

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NOTES AND REFERENCES

1. (1856) 11 EX. 781,784
2. Winfield & Jolowicz on Torts, by W.V.H. Rogers, Sweet and Maxwell London, 1975 P.5.
3. R. Crawford Morris and Alan R. Moritz, Doctor and patient and the Law, Fifth Edition C.V. Mosby Co., Saint Louis, 1971. P. 326.
4. 3rd Edition (Simond's Edition) Vol. 26, article 22 at P. 17, quoted by sale Mohammed in the Tort of Negligence Under Nigerian Law, Unpublished LL.M. Thesis 1996, Faculty of Law, Ahmadu Bello University Zaria Nigeria, P. 146.
5. Umerah B.C, Medical Practice and The Law in Nigeria, Longman, Nigeria, 1989, P. 124.
6. Saleh Mohammed Op.cit. P.65
7. John Cooke Op. cit.P161
8. (1939) 2.K. B. 14.
9. Mahon v. Osborne (1939) 2.K.B.50.

10.lbid. at P. 23

H.Cassidy v. Ministry of Health (1951) 2 K.B. 303.

12.(1865), 3 H & C, 596

13. Crawford Morris R. and Alan Moritz R, Op. Cit. P. 326.

14.Charlesworth On Negligence 6th Edition, Sweet and Maxwell, Londor 19,P. 578-580. 15. Seem the case of Okeowo v. Chief E.O. Sanyaolu, (1972) IAN.L.R.14

39

16.R.V. Bateman (1925) 94 L.J. K.B. 791

1. See Saleh Mohammed Op.cit. P. 68 see also the case of Pippin v.

Sheppard (1822) Prince. See also Charles worth Op. Cit. P. 579.

1. See Crawford Morris, R. and Alan Moritz R. Op. Cit. P. 332.

19.(1953) 1 Lloyds Rep. 73.

20.272 Mich. 273, 261 N.W. 762 (1935).

21.33 Ohio. App. 165, 168 N.E. 771 (1929).

22.44 N.E. 992 (Mass. 1896)

23.317 Mich. Ww5, 26 N.W. 2d. 755 (1947).

24.(1967) I.W.L.R. 813

25. Supra.

26.(1962) 6 E.N.L.R. 196.

27.Saleh Mohammed O.Cit.P. 74.

1. See Edward v. Mallan (1908) I K. B. 1002.
2. Lock v. Scantlebur, the Times, July, 25th, 1963.

30.C!er & Lindsell, Clerk and Lindsell On Torts, Sweet & Maxwell, London,1982, Para, 913. 31.Crowford Morris R. and Alan Moritz v.

op cit. P. 334. 32. Ibid.

33.226 S.C. 37 83 S.E. 2d 460 91954).. 34.(1994) 8 N.W.L.R.PT. 365, 367, at 395-6. 35. Crawford Morris R. And alan Moritz r. Op. Cit P. 336. 36.5 N.Y. 2d 16, 176 N.Y Supp.

2sd 996 (1958).

40

1. Crawford Morris, R. and Alan Moritz R.P. Op. cit. P. 337
2. Ibid.
3. In one of such case the medical expense for a two year period onlyd, totaled

$96,000 (N9,600.000): Danko v. St. Luke's Hospital Cuyahoga Country, Ohio, Common Pleas Court No.844297.

40.23 Misc. 2ed 376, 191 N.Y.S. 2d 310 (1959).

41.(1962) 6 E.N.L.T. 196.

42. Dr Abdulmumini Hassan Rafindadi, "Challenges for the Expert Medical Witness" contained in Health Care Delivery and the law in Nigeria, Proceedings of a Seminar on Continuing Medical Education Programme A.B.U.T.H. Zaria, December, 1977,P.49.

43.Maclein v. Smith, 129 Colo. 72 266 P. 2d, 1095 (1954).

44. Crawford Morris, R. and Allan Moritz R. Op. Cit P. 338.

45.(1948) 1 All r. 141

46.(1939) 2K. B. 14.

47.(1985) 1 AII E.R. 267.

48. Crawford Morris R. And Alan Moritz R. Op. Cit P. 241.

49.270 App. D.W. 648, 61 N.Y.S. 2d 832 (1946).

50.154 N.Y.S.2d. 455. (1956).

51.Ref. A.B.U.T.H./PLG/62, Minutes of the meeting of Ethical Committee Held on 4/9/98 at the Conference Hall ABUTH, Kaduna to, deliberate on the Report submitted on the death of one Mrs. Ama Oche.

52. (1969) 1 Q.B. 528.

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53.(1961) W.R.N.L.R. 173.

1. Cap. 221, Laws of the Federation of Nigeria,

1990.

1. See Unurah B.C. Op. Cit. at P. 122.

56.(1993)3. W.A.C.A. 85.

57. Sale Mohammed Op. Cit o. 94.

58.(1946) 2 WACA.56.

59.(1955) 2 N.L.R. 63.