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The legal framework for medical malpractice claims in Nigeria (Part 2)

The legal framework for medical malpractice claims in Nigeria (Part 2)


A. Importance of informed consent in medical treatment

Informed consent to medical treatment is fundamental in both ethics and law. Patients have the right to receive information and ask questions about recommended treatments so that they can make well-considered decisions about care. Successful communication in the patient-physician relationship fosters trust and supports shared decision making.

B. Requirements for obtaining valid informed consent

Globally, the recognition of the patient’s right to consent to any medical treatment proposed by medical personnel is paramount in the medical profession. The principle of the right of the individual to choose and to decide the circumstances of his health necessitates this consent. Some requirements for consent to be valid are:

1. Capacity of the Patient: For a consent to be valid, the person must be a competent adult with sound mind and body has the capacity to give consent to treatment or procedure to be carried out on him or her. However, these set of people can’t provide consent: 1) an unconscious patient 2) a minor, and 3) a patient with an unstable state of mind

2. Consent must be free: The consent must be obtained from the patient without coercion and manipulation. Where consent is obtained involuntarily, by duress or coercion, it may result to an action for battery.

3. Consent must be prior: The consent must be sought sufficiently in advance of any authorization by the medical or hospital authorities or commencement of activities by a hospital that affects the health of the patient

4. The consent must be given after full disclosure: Informed means that the patient’s consent must only be sought after full and legally accurate disclosure of information concerning the proposed medical procedure.

C. Protection of Patient Rights and Autonomy

Patient autonomy is a fundamental principle in medicine that acknowledges patients’ rights to make decisions about their own care. It emphasizes that people have the ultimate authority over what happens to their bodies and can participate in the decision-making process about their treatment options. This means that healthcare professionals cannot impose treatments or interventions to patients without their informed consent.

Autonomy ensures patient involvement in diagnosis and treatment, rather than relying solely on their doctor. Before granting patients autonomy, medical practitioners must assess their capacity to make life-or-death decisions.

The principle of autonomy is enshrined in the Chapter IV of the 1999 Constitution of Nigeria.

Read also: The legal framework for medical malpractice claims in Nigeria (Part 1)

Medical Records and Documentation

A. Importance of accurate and complete medical records

Maintaining accurate and complete medical records in a hospital setting is critical for a variety of reasons, including ensuring continuity of care for patients, complying with legal requirements, and identifying areas for improvement in patient care and clinical processes.

B. Legal requirements for medical recordkeeping

Legal Issues in Patients’ Records Management

Patients have the right to know what information has been collected about them, view and copy that information, and have limited control over how that information is disclosed to other people or entities. As a result, any disclosure of information by the hospital without the patient’s written consent can be considered a violation of patient privacy and may result in penalties.

In the patients’ records / prescription sheet will be liable for wrongful prescription or drug dispensation.

C. Access to medical records for patients and legal proceedings

Medical documentation is a record of the process of providing healthcare services. It is also the primary evidence in legal proceedings against the doctor. The law establishes specific rules for the protection of medical records. The patient has a statutory right to access medical records. The legal requirements for practicing medicine include maintaining and making medical records available. Medical records may only be made available to authorized individuals and in forms specified by law.

Statute of Limitations and Filing Deadlines

A. Time limitations for filing medical malpractice claims

The limitation period for contract or tort actions is generally six years, with the exception of tort actions for personal injuries, which are typically two or three years, depending on the legislation. The reason for this disparity in limitation periods has been identified as the fact that victims of personal injury must be compensated within a reasonable timeframe.

B. Tolling provisions and exceptions to the statute of limitations

There are some exceptions to the statute of limitations in medical negligence cases. For example, the time limit may be extended if the plaintiff discovers their injury after the deadline had passed. This is known as the discovery rule, and it applies when the damage is not immediately visible or is caused by a medical condition that takes time to manifest.

Another exception is the tolling of the statute of limitations. Tolling refers to the suspension of a deadline due to unavoidable circumstances, such as the plaintiff’s minor status or mental incapacity at the time of the injury. In such cases, the statute of limitations may be extended until the plaintiff reaches the age of majority or recovers mental capacity.

Burden of Proof and Expert Testimony

A. Burden of proof in medical malpractice claims

In the case of Okoye v.Nwankwo The Court held as follows: The term ‘burden of proof’, also known as ‘onus of proof’, refers to the legal obligation on a party to satisfy the fact finders, to a specified standard of proof, that certain facts are true. The facts for this purpose are facts in issue, the facts on which the legal rights and liabilities of the parties to the case depend.

As a result of the foregoing, in a medical negligence suit, it is up to the patient-complainant to establish his claim against the medical man, rather than the medical man to prove that he acted with sufficient care and skill. If the claimant discharges the initial burden of negligence, the hospital and doctor must prove there was no negligence

B. Role of expert witnesses and their qualifications

An expert is someone who, in the opinion of the court, has had sufficient practice or experience in a specific field of knowledge as a professional or amateur.

The expert witness must possess the necessary professional qualifications/training, practical experience, and years of experience.

C. Admissibility and weight of expert testimony in court

In Nigeria, the court determines cases in favour and against based on expert evidence but the court is not bound by expert evidence. In Fayemi v Adeayo Oni & Anor the court held that: The evidence of an expert is generally an aspect of the entire evidence to be evaluated by a court because a trial court must be fully in control of all the evidence before it and must not abdicate its primary duty of assessing the evidence and forming its clear opinion in relation thereto, including any expert evidence. In other words, a court is not bound by the evidence of an expert witness, it has an opinion in the matter, that it must exercise judicially and judiciously. In many cases, the existence of other credible evidence would constitute a good reason for rejecting expert evidence.

Medical Malpractice Claims Process

A. Pre-litigation procedures and requirements

An aggrieved patient or proxy may initiate civil and criminal actions for medical negligence by taking any of the following options or steps, either directly or through a legal practitioner:

1) Sending a letter of complaint and demand for redress to the doctor or his employer regarding the incident of medical negligence.

Whether or not (1) above is first implemented?

2) To seek redress, file a formal complaint with the Medical and Dental Council of Nigeria.

3) Filing a report at a police station with the ultimate goal of criminal prosecution in cases where the negligent act in question is considered criminal.

4) Instituting civil action for redress in a court of appropriate jurisdiction on the ground of the act or conduct constitution medical negligence.

B. Filing a medical malpractice lawsuit

Filing a medical malpractice lawsuit is done at the High Court of a state or F.C.T High Court.

C. Discovery, trial, and judgment

Bringing a civil action for redress in a court with appropriate jurisdiction based on the act or conduct that constitutes medical negligence. Civil actions on other subjects, such as medical negligence, can proceed from the court of primary jurisdiction to the final court of appeals.

The battle is directly between the aggrieved patient and the doctor in the traditional setting of Plaintiff/Claimant versus Defendant, with each side attempting to prove his case in accordance with the law. In any contest, the prosecutors or claimants must establish the doctor’s culpability for the alleged negligent act; otherwise, there is no basis for sanctions or restitution. Perhaps it is worth noting that all the necessary principles for fair hearing and due process must be followed; otherwise, a doctor sanctioned at a lower court may walk free at an appellate court. There would be a proper examination in chief, cross examination and if necessary, re-examination of all witnesses before the court can deliver its final judgment.


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Disclaimer: This article provides general information and does not constitute legal advice. For specific legal advice, readers are advised to ∙contact us on [email protected]