September 26, 2020
By Mercy Agbo (Associate)
Introduction
The COVID 19 pandemic has put the world today on a standstill. Businesses and human activities have been put on hold for the life of mankind to be preserved. It is safe to say that health practitioners especially, medical doctors are at the forefront of this battle and there is need to preserve a continuous and friendly relationship between them and patients. It is established law that doctors owe a sacrosanct medical duty of care to their patients which requires a high degree of skill and competence; otherwise, liability for medical negligence may arise. However, given certain circumstances, it is not easily determinable when negligence is said to have arisen as instanced where due to the COVID 19 pandemic, most doctors may be scared and decide not to attend to sick persons especially those who show symptoms of the virus, where a patient dies in the course of being treated or out of improper diagnosis by the doctor or hospital.
This article, therefore, tends to answer the posers: whether a medical doctor can refuse to treat a patient? Whether the patients have any right? Whether a medical doctor or a hospital can be liable for negligence? by focusing on the duties and responsibilities of medical practitioners vis a vis the rights of patients with a discuss on medical negligence, its elements and remedial actions that can be brought up in the case of a breach.
Rights of Patients vis a vis Duties and Obligations of Medical Practitioners
In Abatan V. Awudu,[1] the Court of Appeal per Aderemi JCA, held that, the relationship between a doctor and his patient is one of trust and confidence; a relationship where one has the power and the duty to treat and restore the other to mental and physical well-being.” In defining who a medical practitioner is, Section 8 of the Medical and Dental Practitioners Act[2] provides that he is one who has attended an approved course of training, the course was conducted at an institution so approved, or partly at one of such institution and partly at another or others, he holds a qualification so approved; and he holds a certificate of experience issued in pursuance of the Act.
Happily, the patient’s bill of rights which was launched by the vice president, Yemi Osibanjo in July 2018,[3] laid down the rights of patients to include the right to information, confidentiality, quality of care, dignity, access to emergency care, visitation, right to refuse care, right to complaints.[4]
On the other hand, the duties and obligations of medical practitioners can be founded on Common law, statutory law, and Ethical obligations.[5]
At Common Law, the obligations arise in the Law of tort and contract.
In Tort, the golden thread that runs through the relationship between a patient and medical personnel is the peremptory duty to treat the patient with reasonable care and skill while under the Law of Contract, the peremptory duty of care and skill forms an implied term of every doctor/patient relationship.[6] A contract of medical service may contain express terms which may include an undertaking to achieve a specific result. To succeed in an action for breach of contract unlike in negligence cases, it suffices for the patient to prove the existence of a doctor-patient relationship; breach of the implied /express term of the contract- to treat, and injury arising from or in the course of treatment.[7]
Statutory Obligations
The 1999 Constitution, [8] under Section 33 and section 17(3)(d) provides for right to life and duty of the state to provide adequate health care and facilities respectively. The National Health Act (NHA), 2014, under Part 3, contains several Rights of health care users and the obligations of healthcare providers. Thirdly, The Medical and Dental Practitioners’ Act, which appears to be the main law regulating medical practitioners in Nigeria as their powers are derived therefrom, provides the requirements for registration, membership, and discipline of medical practitioners by the Medical and Dental Council of Nigeria. [9] Also, the Code of Medical Ethics[10] codified by The Medical and Dental Council of Nigeria (MDCN) in furtherance of its statutory functions as provided for in Section 1 (2) (c) of the Medical and Dental Practitioners Act, laid down the standards of acceptable medical and dental practice in Nigeria especially under Rules 26 to 70.
Furthermore, the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act,[11] incorporated by Nigeria into its domestic law, is to the effect that all rights contained therein can be invoked in the court of competent jurisdiction, as enforceable rights and it includes the right to health and medical care under Article 16. Under the Criminal Code,[12] the criminal liability of a medical practitioner for the negligent treatment of a patient is based on gross breach of duty which the medical practitioner owes the patient as provided under section 303. Also, there is negligence in cases of omission to perform a duty or carry out an act.[13] Section 305A (2) further provides for liability for malicious breaking of a contract of service if such will endanger human life or cause serious bodily harm.
In 2017, President Muhammadu Buhari signed into law the Compulsory Treatment and Care for Victims of Gunshot Act 2017[14] which comprises of 16 sections and provides that, every hospital in Nigeria whether public or private shall accept or receive for immediate and adequate treatment with or without police clearance any person with a gunshot wound, but are duty-bound to report to the nearest police station within two hours of commencing treatment on the victim.[15]
Ethical Obligations
The Hippocratic Oath has been universally adopted by Medical personnel who pledge to consecrate their lives to the service of humanity; that the interest of their patients shall be their first consideration, and to give utmost respect for human life right from conception. Also, the International Code of Medical Ethics 1949 contains the duties of physicians to patients, to the society, and to themselves.
Can a doctor refuse to attend to a patient?
Due to the Hippocratic Oath taken by medical practitioners, there is a widespread view that care of medical practitioners ought not to be limited only to the patients under their direct management but to be extended to any patient whom they come across in their professional environment and as such, a medical practitioner owes the duty to care for every patient found within the hospital premises whether or not he is on the management team of such patient.[16]
Generally, a doctor has the right not to attend to a sick person.[17] The most obvious of these is if the doctor does not treat patients with the patient’s specific condition. For example, an individual suffering from a throat infection cannot realistically expect a gynaecologist to diagnose and treat his or her condition. Other reasons why a doctor can deny treatment are, where; the patient exhibits drug-seeking behaviour, the patient is disruptive or otherwise difficult to handle, the doctor does not have a working relationship with the patient’s healthcare insurance provider, due to the doctor’s convictions,[18] such as a doctor refusing to perform an abortion for religious reasons or refusing to prescribe narcotics for pain.
However, in cases of emergency, doctors cannot refuse to treat patients.[19] In emergencies, responding doctors and other healthcare providers are required to stabilize the patient’s condition regardless of the patient’s ability to pay for the treatment or provide proof of insurance.[20] The patient cannot be released or transferred to another hospital until their condition has been stabilized. Once stabilized, the hospital can legally release the patient or refuse further care, so long as the refusal is not discriminatory or without good cause. Also, a doctor cannot deny medical care if he has commenced diagnosis or treatment on such a patient or if the patient is registered under his care[21] unless for a good cause.
There are times when a patient may be rightfully denied emergency medical care. Some of the most common reasons include where, the patient exhibits “drug-seeking behaviour as most emergency room doctors and nurses are trained to identify those who likely have a drug problem, the patient is deluded, believing they are seriously ill when there is no real illness and where the patient displays destructive or dangerous behaviour while waiting to be seen.[22]
Therefore, doctors are not legally obliged to act as “good Samaritans”. However, once a doctor stops and either says that he is a doctor or starts to act as though he is a doctor, he has taken on a duty of care to that patient. This means that he is now potentially liable for negligence.[23]
What is Medical Negligence?
Medical Negligence has been defined as the improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care providers.[24] It can also be defined as an act or omission (failure to act) by a medical professional that deviates from the accepted medical standard of care. Generally, only the person who has been a victim of the medical error can sue. However, where the patient has passed on, the next of kin of the patient can sue for compensation. If the patient is a child, the parents or the legal guardian of the child can sue. The victims of medical negligence can institute a legal claim under criminal law, civil law or a disciplinary action under the Medical and Dental Practitioners’ Act.
Liability in Medical Negligence
For a civil claim in medical negligence, all elements of the three-part tests must be proved.
First, that the medical practitioner owed a duty of care to the patient – For a duty of care to exist, there must be a fiduciary relationship between the medical practitioner and the patient. There must be a doctor-patient relationship. This fiduciary relationship can also be formed impliedly without a formal consent by the patient if a person holds himself out as possessing special skill and knowledge and is consulted as possessing such skill and knowledge, by or on behalf of a patient as held by Lord Hewart CJ in R v Bateman.[25]
Second, the duty of care was breached – After a duty of care is established, the patient must then prove that the conduct of the medical practitioner amounts to a breach of the duty of care and that he acted below the standard of care expected of him in his professional capacity.[26] The court uses the objective test and expects the standard of a reasonable man.
Finally, the patient suffered damages.-the patient must prove that the injury or damages was not only caused by the defendant, but that it was also, a direct and not a remote consequence of the defendant’s action.[27]
On the other hand, a hospital will be vicariously liable if its staff is negligent in the performance of their duties.[28] This is based on the general principle recognized in the case of Igbokwe V University College Hospital Board of Management,[29] where Irwin J held that; a hospital authority is responsible for the acts or omission of the whole of its staff, whether they were physicians, doctors, nurses or other employees.”
After a successful proof of negligence by the claimant, the court can grant adequate remedies such as damages which can be can be special; compensatory; aggravated or exemplary. Other remedies include injunction, specific restitution, and prohibition.
A patient can seek redress under criminal law in the gravest of circumstances that shows such disregard for life as to amount to a crime against the State and the degree of negligence must be above ordinary tortuous claims
A complaint can be filed with the Medical and Dental Practitioners Disciplinary Tribunal established by Section 15 (1) of the Medical and Dental Practitioners Act. After investigations by the Medical and Dental Practitioners Investigation Panel[30] and a prima facie case is established, such negligent doctor will be liable to Suspension for a period not exceeding six months; or having his name struck off the medical or dental register, as the case may be, or admonition.[31]
Another option available to patients is exploring any of the most used forms of alternative dispute resolution in resolving medical negligence cases which are Arbitration or Mediation.
Defences [32]
A medical doctor sued or charged for negligence can raise a defence where; the claimant failed to prove Negligence,[33] the injury was caused by another unforeseeable act (Novus actus interveniens), the patient contributed to the negligence, there were illegal actions by the patient or the claimant has expressly given his consent to take his chances of injury from a disclosed risk (Volunti non fit injuria).
Conclusion & Recommendations
It has been clearly established that a medical doctor is not duty-bound to attend to any sick person who comes his way unless a duty of care has arisen and that doctors can be liable in cases of breach of such duty.
Hence, unless a medical practitioner who has been trained to take care of COVID 19 patients or one working with the isolation centres where these cases are treated, a medical practitioner who may not have the requisite skill or who feels a need to protect himself to avoid contracting the virus may not be liable. However, where such a patient is one in an emergency situation, the doctor should be able to exercise reasonable caution to stabilize the patient before referral.
Though, the health care system should be applauded for reforms and new legislations for a better health care system. However, it is still recommended that a lot of reforms still need to be done to preserve the health of patients and duties of medical practitioners. It is also recommended that doctors should be able to at least ask questions to patients who they think have symptoms of the virus in order to ascertain the true facts for proper referral.
** Published on Business Day Newspaper, 24th September, 2020.
[1] [2003] 10 NWLR (Pt. 829) 451 C.A.
[2] Cap M8, Laws of the Federation of Nigeria, 2004.
[3] Patients ’ Bill Of Rights: Making Health a Human Right in Nigeria, available at
https://dentalgist.ng/patients-bill-of-rights-making-health-a-human-right-in-nigeria accessed on 29 June 2020.
[4] Patients’ Bill of Rights, available at http://fccpc.gov.ng/uploads/files/patients-bill-of-rights-full-version.pdf accessed on 29 June 2020.
[5] Prof. U. Abugu, Introduction to Medio-Legal Practice in Nigeria, a paper presented at the 24th NBA Abuja discussion series, 2020.
[6] F.O Emiri, Medical Law and Ethics in Nigeria, (1st Edn, Lagos, Nigeria: Malthouse Press Ltd. 2012).
[7] O. Adebola & O. Ademola, Legal Perspectives on Liability for Medical Negligence and Malpractices in Nigeria, available at https://www.panafrican-med-journal.com/content/article/35/44/full/ accessed on 30 June 2020
[8] Constitution of the Federal Republic of Nigeria (As Amended) 1999.
[9] Section 8-16, Medical and Dental Practitioners’ Act.
[10] Code of Medical Ethics, issued on 1st January 2004. Also known as the rules of professional conduct.
[11] Chapter A9, Laws of the Federation of Nigeria, 1990
[12] Cap C38, Laws of the Federation of Nigeria 2004
[13] Sections 305 of the Criminal Code
[14] Assented to by President Buhari on December 29, 2017
[15] Section 3(1)
[16] O. Adebola & O. Ademola, Legal Perspectives on Liability for Medical Negligence and Malpractices in Nigeria, available at https://www.panafrican-med-journal.com/content/article/35/44/full/ accessed on 30 June 2020
[17] Rule 28 Code of Medical Ethics.
[18] Rule 45, Code of Medical Ethics.
[19] Section 20(1) National Health Act.
[20] C. Gueli Esq., Can You Sue a Hospital or Doctor for Denying Medical Treatment? available at
. https://www.injuryclaimcoach.com/treatment-denial.html accessed on 28 June 2020.
[21] Rule 28, Code of Medical Ethics.
[22] Section 20(3) National Health Act.
[23] Rule 28, Code of Medical Ethics.
[24]M.Agbo, Medical Negligence, a Rising Science of Law in Nigeria, available at https://thenigerialawyer.com/medical-negligence-a-rising-science-of-law-in-nigeria-by-mercy-agbo/ accessed on 29 June 2020.
[25] (1925)ALI, ER p 45 at 48
[26] B. Ogundare, Medical Negligence in Nigeria: A Quick Guide on Liabilities and Remedies, available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3476524 accessed on 29 June 2020.
[27] Ajaegbu V. Etuk (1962) 6 ENLR. 196
[28] Section 21(2) National Health Act.
[29] (1961) WNLR 173.
[30] Section 15 (3) Medical and Dental Practitioners Act.
[31] Section 16 (2) Medical and Dental Practitioners Act.
[32]D. Momodu & T. Oseni, “Medical Duty of Care: A Medico-Legal Analysis of Medical Negligence in Nigeria” in American International Journal of Contemporary Research Vol. 9, No. 1, March 2019, p. 61.
[33] Are there any defenses against negligence? Available at https://www.kansascityaccidentinjuryattorneys.com/faqs/are-there-any-defenses-against-negligence.cfm accessed on 30 June, 2020.
