Dele Olabanjo, a practising lawyer, who has handled cases of medical negligence before, was of the opinion that the surgeon was at fault. “If you want to do an operation, you know approximately how many minutes or hours it will take, so you can predict what will happen in those minutes. In a private hospital that has fewer doctors, most of them are in -charge and are senior officers who can give instructions and say ‘between so and so time, make sure the generator is on.’ ” He maintained that since the operating doctor was in charge, he was supposed to make sure that all went well during the surgery.
Nwodo, who underwent an excisional biopsy said that she felt she could have got better service in Lagos State than in Abia State, but due to certain restrictions she could not go there. “An excisional biopsy was performed on me. And one of the reasons why they did it was because after the biopsy was done, you are supposed to take it to the histology laboratory for analysis and it is at the histology laboratory they can tell if the lump is cancerous or not,” she said. “From what I was told, if it was done at a federal hospital, it will take them weeks to bring back the result. And if the lump is cancerous, it could progress in the person’s body before the result comes out. That is why the entire lump was removed because they didn’t know when the result will come.” An excisional biopsy is a medical test where the whole lump is removed and tested, while a needle biopsy which Nwodo preferred would only require a piece of tissue from the lump which will then be tested to find out if it was cancerous or not. In cases where the needle biopsy is opted for, if the lump is indeed cancerous and it took such a long time to be tested, it would have progressed causing more trouble for the patient.
Dr. Ebele also said that since medical negligence was a delicate topic, it was difficult to define a negligent situation. He stated that the workload and the number of patients assigned to a doctor played a huge part in determining how negligence happens. “For a doctor to be accused of medical negligence, it would have to be proven by law. There is something that we use to ascertain if somebody is negligent. One of them is the duty of the doctor which is actually subjective. Your duty as a doctor is to alleviate a problem of a patient whether physical, mental, medical, social or psychological.
Sometimes the parameters for measuring your levels of duty can be subjective. “These parameters include time given to each patient and the amount of information you have regarding that patient. It is difficult to probe. For example, if you are working in a general hospital and you are attending to 500 patients a day, you have a limited time to attend to a particular patient,” he said. The Nigerian healthcare system continues to suffer from chronic underfunding, remaining prone to frequent strikes as health workers protest underpayment and harsh working conditions. The Nigerian Medical Association (NMA) has said that only 40,000 doctors are registered under it and with the population of Nigeria at an estimated 200 million people, that means each doctor usually attends to 5,000 patients, an overwhelming number no matter how it is viewed. “Workload definitely affects you. The information a doctor will be able to gather about a patient within a particular time frame affects him the most. I think the major factor of medical negligence is workload and a toxic working environment which in general include electricity and availability of medical facilities,” Ebele said. Lukman Fagbemi, another legal practitioner, explained that a patient could sue the doctor who was negligent, while providing care to them but before then that fact would have to be established by another qualified doctor.
“A doctor can be sued for damages but before that, it has to examined by another qualified doctor to show that what that accused doctor did ought not to have been done in the first place. That is you have to establish that he or she took a very bad and wrong procedure, not in line with the practice for that patient,” he said. Some doctors, he claimed, however, try to protect the interest of their colleagues. Fagbemi said: “A patient, once it has been established that the doctor was negligent should go to the high court, but first of all, a petition will be sent to the medical disciplinary committee. Sometimes, these committees and boards don’t react or respond well because they are protecting their colleagues, but they will listen anyway.” The NMA made a strong case for its commitment to ensuring erring doctors are sanctioned. The president of the association, Innocent Ujah, told a national newspaper that it would be ridiculous for anybody to believe they were not taking the complaints of aggrieved patients seriously. He said, “do you know why nothing was done in the past? It wasn’t the fault of the Medical and Dental Council of Nigeria because there were several cases of litigation before the council. When the Federal Government announced the dissolution of federal boards, MDCN was also dissolved. It only exists in perpetuity by law. Once the board is dissolved, the whole system is interrupted and cases will keep piling up.” In 2015, the Muhammadu Buhari administration dissolved the board of parastatals and agencies which affected the leadership and direction of the MDCN.
Although, the House of Representatives, in the following year called that the boards be reconstituted, little is being done to repair the damages of this dissolution. There is drought of information on cases of medical negligence though, as there is a low level of formal complaints made by injured victims. Complaints of negligence are passed around at dinner tables, over a bottle of beer, in the presence of a religious congregation during the testimony time, or subjects of the latest social media rant before the dust settles again.
In a case where the medical practitioner is found guilty, he can have his name struck off the register or his licence suspended The gravity and frequency of the offence determine the punishment meted out. These measures are usually undertaken by the MDCN which regulates the affairs of the medical practitioners in Nigeria. Sometimes, the doctors would prefer an out-of-court settlement, especially when culprits know how guilty they are. Olabanjo explained how he legally represented an errant doctor whose negligence resulted in the death of a patient at a later time.
The doctor opted for an out- of- court settlement and agreed to pay the sum of N3 million over a stipulated time frame. Fagbemi stated that out-ofcourt settlements were more popular in cases where life had not been lost.
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