Issues relating to medical and healthcare malpractices vary in different countries and accelerate as time progresses. Globally, there has been a high rate of mortality and impairment caused by medical dereliction of duty. Healthcare providers in Nigeria and the rest of the world face numerous challenges when it comes to managing liability and mitigating malpractice risks. This is because Nigeria’s healthcare system is grappling with limited resources, inadequate infrastructure, and a shortage of healthcare professionals, which can contribute to malpractice risks and patient harm.
In 2017, a publication on medical errors by the Archives of Medicine and Health Sciences showed a prevalence of negligence at 42.8 per cent per 145 medical practitioners. Also, in the United States, a comprehensive study was carried out in 2016 by researchers at John Hopkins and it was discovered that an average of 250,000 people die in the U.S. because of medical mistakes each year. This shows that medical malpractice is the leading cause of death in the U.S., behind only heart disease and cancer. According to the Medical Malpractice Center, in the United States, there are between 15,000 and 19,000 medical malpractice suits against doctors every year.
The meaning and scope of medical malpractice
According to Medical News Today, “Medical malpractice occurs when a healthcare professional or provider neglects to provide appropriate treatment, omits to take an appropriate action, or gives substandard treatment that causes harm, injury, or death to a patient”.
Similarly, according to the American Board of Professional Liability Attorneys, Medical malpractice occurs when “a hospital, doctor, or other health care professional, through a negligent act or omission, causes an injury to a patient. The negligence might be the result of errors in diagnosis, treatment, aftercare, or health management”. Medical malpractice may include surgical errors, misdiagnoses or late diagnoses, birth injuries, improper medication or dosage, medication errors, failure to obtain the informed consent of the patient before proceeding with any surgical procedure, failure to attend promptly to a patient requiring urgent attention when the practitioner was able to do so, amongst others.
In Nigeria, some of the primary causes of malpractice risks for healthcare providers include factors such as inadequate training, poor communication between the medical practitioner and the patient, inadequate staffing, lack of resources, and failure to adhere to established protocols and standards. The basis for medical malpractice under the Common Law jurisdictions is based on the tort of negligence as propounded in the celebrated case of Donoghue V. Stevenson. In this case, Mrs Donoghue consumed a ginger beer which had a decomposed snail in it. Thereafter, she suffered from an illness as a result of the contaminated ginger beer. The erstwhile House of Lords stated that the three ingredients which a plaintiff must establish to succeed in a negligence claim are; that the defendant owed him a duty of care, that there was a breach of this duty, and that the breach caused him injury or damage.
reported medical errors showed a prevalence of negligence at 42.8 per cent per 145 medical practitioners.
Thus, for a complainant to succeed in a medical malpractice case, he must prove that the medical practitioner owed him a duty of care; the duty of care was breached; the breach resulted in injury; and there was considerable damage. This principle of negligence was applied by the Supreme Court in Agbonmagbe Bank Limited V. CFAO (1966) LPELR – 25282 (SC) where the Court held that “…in a desire to put things right for guidance on the application of the law of tort negligence, which is that the plaintiff must show that the defendant owed him a duty of care and that he suffered damage in consequence of the defendant’s failure to take care, and was cited with approval in the case of Nigerian Bottling Company Limited v Ngonadi (1985) SC. 103).
Worthy of mention is the case of Ojo V. Gharoro & Ors (2006) LPELR-2383, where the Court examined the issue of medical negligence and when a doctor will be held liable for negligence. It cited Lord Denning’s statement in his book The Discipline of Law, pages 237,242 and 243 where Lord Denning stated as follows: “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…”
Legal framework for medical malpractice in Nigeria
There are laws which guide the medical profession in Nigeria, and these also include principles of ethics guiding the members of the profession, as well as disciplinary measures to ensure compliance. These laws are as follows: Medical and Dental Practitioners Act (the principal legislation regulating the Medical Profession in Nigeria); Nursing and Midwifery (Registration, etc.) Act; Constitution of the Federal Republic of Nigeria, 1999 (As Amended); Code of Medical Ethics in Nigeria, and Compulsory Treatment and Care for Victims of Gunshot Act, 2017.
Mitigating malpractice risks and ensuring patient safety
Medical errors are high-priced because of their adverse effects on patients. Nevertheless, Medical malpractice should not be considered inevitable, although striking a balance between malpractice risks and ensuring patient safety can be daunting, especially in a developing country like Nigeria. Ensuring patient safety and mitigating malpractice risks in healthcare requires a multi-faceted approach that involves various stakeholders, including healthcare providers, patients, regulators, and policymakers. Once an error is detected, it can result in loss of lives, with the hospital incurring lawsuits.
To mitigate malpractice risks while ensuring patient safety, healthcare providers need to adopt a proactive approach and implement some strategies which may include the following:
1. Implementing measures to ensure patient safety: Measures such as investing in staff training, maintaining accurate medical records, conducting regular risk assessments, verifying all medical procedures, and making sure patients understand their treatment procedure should be put in place.
2. Quality assurance programs: According to Dr Heather Palmer, “quality assurance is a process of measuring quality, analysing the deficiencies discovered, and acting to improve performance followed by measuring quality again to determine whether improvement has been achieved. It is a systematic, cyclic activity using standards of measurement”. Development and implementation of quality assurance programs which aim to improve patient care and safety will play a crucial role in mitigating malpractice risks and this could involve measures such as regular monitoring and evaluation of clinical outcomes, continuous training/education of staff, and establishing and adhering to evidence-based clinical protocols and guidelines.
3. Improving communication and teamwork: Communication breakdown and lack of teamwork can contribute to malpractice risks. Therefore, healthcare providers should prioritize effective communication and teamwork among staff. This can involve improving communication channels, enhancing interprofessional collaboration, and implementing effective handover procedures.
4. Adhering to professional standards and protocols: Healthcare providers should adhere to established professional standards and protocols to minimise the risk of malpractice. This includes following established guidelines for medical treatment and procedures, obtaining informed consent from patients, and ensuring that medical equipment and supplies are used appropriately.
5. Using technology to improve patient safety: The use of technology in healthcare can help to improve patient safety and reduce the risk of malpractice. Electronic Health Records (EHRs) can provide accurate and timely information to healthcare providers, while Computerised Physician Order Entry (CPOE) can help reduce errors related to medication prescriptions.
6. Obtaining malpractice insurance: Healthcare providers should consider obtaining malpractice insurance to protect themselves against liability claims. Malpractice insurance can help to cover legal costs and compensation in the event of a malpractice claim. The services of a product and service liability lawyer may also be employed in cases where there are allegations of medical malpractice or negligence.
7. Encouraging patient involvement: Patients play an important role in ensuring their own safety by being actively involved in their care. Thus, medical practitioners should encourage patient involvement and ask necessary questions which will facilitate shared decision-making with healthcare providers.
In addition to the above-mentioned, healthcare organisations also owe a duty of care to secure sensitive documents relating to the patients and protect their staff from potential harm, especially in cases of pandemics.
Healthcare providers face a range of liability risks when providing medical care to their patients. Medical errors can impoverish one to enrich the other because most patients end up with a huge sum of compensation whilst leaving the hospital to drown in the loss. Ultimately, the key to managing liability for healthcare providers is to prioritise patient safety and make risk management an integral part of daily practice as these risks can have significant consequences, both for the provider and the patient. By implementing these strategies, healthcare providers will not only reduce their exposure to malpractice claims but also improve the quality of care they provide to their patients.
More importantly, the role of lawyers in the management of malpractice claims or medical liability suits cannot be over-emphasised, as even the most skilled healthcare professionals are not immune to allegations of medical malpractice or liability claims. It is therefore imperative on the part of medical practitioners to regard or consider every patient as a potential litigant and make adequate preparations by securing the services of a medical malpractice or liability lawyer. This will make the procedure less problematic when the services of a legal adviser are employed in a brewing liability, during or after the damage is done.
Amala Umeike is a Partner at Stren & Blan Partners and supervises the Firm’s Health and Pharmaceutical Sector. Clara Eze is an Associate in the Firm’s Dispute Resolution and Intellectual Property Departments, while Favour Etagbemukwe is an Associate in the Firm’s Health and Pharmaceutical Sector.
Stren & Blan Partners is a full-service commercial Law Firm that provides legal services to diverse local and international Clientele. The Business Counsel is a weekly column by Stren & Blan Partners dedicated to providing thought leadership insight on business and legal matters.
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