Medical Negligence in Nigeria [Part 2]: The Slow Road to Justice

Many people die in Nigerian hospitals as a result of medical negligence, yet few cases of medical negligence are ever reported, and even fewer prosecuted. Long trial periods, corruption and a general mistrust of the judicial system are a few of the reasons many Nigerians think twice before filing a case of medical negligence in the courts. In this second installment of our 3-part series on medical negligence in Nigeria (Read Part 1 here), Temitayo Olofinlua explores the challenges of reporting and seeking justice for medical negligence in Nigeria.

Lanre Onidundu was rushed to the Gbagada General Hospital with a gunshot wound to the leg after being shot by bank robbers. He says that upon arriving at the hospital, he was left unattended to for hours and when a medical officer finally attended to him, his wounded leg was wrapped up with brown carton papers following an injection treatment for his pain.

Onidundu alleges that due to the hospital’s medical negligence – a lack of facilities, inexperienced medical staff, delayed treatment and poor management of his wound – his leg deteriorated and eventually required amputation. Today he lives in Germany with a prosthetic limb, his price for medical negligence.

Despite the life-altering consequences, Onidundu never reported his case. The experience itself was too draining for him to think of anything, let alone filing a court case. “The psychological impact on me was there [at that time].” In addition, he had already lost his leg and felt “the deed has already been done.”

Still, as he looks back on the incident today, he wishes that he had taken some form of action. He says, “I would not want the effect of the same negligence by the medical personnel to be suffered by other Nigerians.”

What is Medical Negligence?

Laolu Osanyin, a lawyer specializing in medical cases, says that three factors must be in place in order for a case to be considered medical negligence in the eyes of the law.

“The first thing is that there must be a doctor-patient relationship, which you can also call a duty of care. Then, there must be a breach of that duty. Essentially, the doctor must have fumbled. The third thing that must be in place is that harm must occur. The patient must suffer some kind of harm for negligence to occur.”

One cannot help but wonder how harm is defined here. Is the loss of a leg considered enough harm? And must the harm be physical in nature?

Lawyer Deji Olunlade says that the harm does not necessarily have to be physical, nor does it have to involve the loss of a body part. He gives an example of a patient left untreated upon admission to the hospital because the doctor on duty is not around. Eventually the patient is transferred to another hospital where he is treated.

“It may not lead to death,” says Olunlade, “but the patient has suffered some form of loss even though he got transferred to another hospital and survived.”

*Ruth’s Story

In December of 2012, Ruth went into labour with her first child at a private hospital in the Iyana-Iba area of Lagos. She was in labour for twenty-two hours. She says that when her daughter was eventually born, the baby was in distress but did not cry.

Ruth alerted the doctor. “I asked the doctor to see my baby because I did not hear her cry. He replied jokingly: “take cane and flog her now,” she recalls.

In addition, Ruth was not lactating after delivery, though the hospital had advised breastfeeding exclusively. The doctor told her that her baby had been given glucose and water; she remained on glucose and water for three days.

“I started complaining to them when, on the third day, she was not making any sounds. The hospital staff said she was fine.” But on the fourth day, Ruth’s daughter had a seizure.

“The doctor could not tell what was wrong. He referred us to a government hospital.” Ruth visited the newly commissioned Mother and Child Hospital in Lagos. There, her daughter was rushed into emergency and given an anti-seizure injection. A brain scan at Yaba Psychiatry showed that Ruth’s daughter suffered from primary generalised epilepsy. She was placed on daily medication to lessen the frequency of the seizures.

After consulting with several medical experts, Ruth learned of two likely causes for her child’s condition. “First, by not crying immediately after birth, a part of her brain did not take in oxygen. Second, she also had hypoglycemia – low blood sugar. Her blood sugar level was 15. It is not supposed to be lower than 40 for a newborn.” With this discovery, Ruth became angry at the hospital, and at the doctor for being careless.

Ruth pays the price of that carelessness daily. The drugs her daughter needs cost ₦2, 050 per bottle, and she buys a new bottle every 10 days. During her daughter’s most recent seizure, Ruth turned to check on her in the backseat on their way to the hospital and drove into an electricity pole. Fixing the pole cost her ₦90, 000; repairing the car, ₦180, 000.

But even these staggering financial costs do not begin to compare with the emotional burden of raising a chronically ill child. “[The seizures] can happen anytime, anywhere, so you have to be on the lookout,” she says, adding that people have advised her to visit prayer mountains for solutions.

Ruth says that she is considering pressing charges against the hospital, but worries that it will be too hectic. Raising a child who may suffer a seizure at any time is difficult enough for the mother of two, and she worries that legal proceedings might be too much to bear.

“They’ve Been Getting Away With It”

In 2011, Juwura Amoo-Onidundu went to the University College Hospital to deliver her child by caesarean section. There were complications, and though her baby lived, Juwura died. The primary cause of death according to the doctors was haemoperitorium (an accumulation of blood in the abdominal cavity); the secondary cause, hypovolemic shock.

The cause of death according to Juwura’s family: medical negligence. Her fallopian tube had been punctured during the surgery. And unlike the cases mentioned previously, her family is pursuing the case beyond her death – they want justice.

Banji Amoo-Onidundu, Juwura’s husband, says, “I realised that I wasn’t the only one that suffered that kind of loss. I started hearing several cases. I wasn’t the first person; I wasn’t the last person. It is because people have not been talking. That’s why it has been happening. They’ve been getting away with it. Somebody needs to talk and stop this.” That somebody became him, and the Amoo-Onidundu family went to court.

They are not alone. Despite the many challenges involved in pursuing justice in cases of medical negligence, there has actually been an increase in the number of Nigerians reporting medical negligence. In the 36-year span between 1962 and 1998, there were 94 cases of medical negligence reported to the Medical and Dental Council of Nigeria, compared with over 100 cases in the six-year span between 1999 and 2005.

Laolu Osanyin believes this can be attributed to globalization, and the Internet in particular. “People who have families that have done certain procedures abroad and hear of people dying of said procedures here have started questioning doctors.”

The Paths to Justice

Court is one of the channels for reporting medical negligence, but there are others. Laolu Osanyin brings up another option: the Medical and Dental Council of Nigeria (MDCN).

“The patient who is suspicious of negligence has a right to petition the MDCN to report a case of negligence against the Nigerian doctor. The MDCN decides to investigate. They have an investigative panel that looks into the matter, that looks at the side of the patient. So, the investigative panel sends their findings to the medical tribunal.”

According to Osanyin, the MDCN’s tribunal has the power to do three things: 1) suspend a doctor’s license; 2) admonish a doctor; or 3) withdraw a doctor’s license to practice.

The MDCN can be considered first level of punishment, although the MDCN cannot issue compensation. Osanyin says that if a patient is still displeased with the MDCN’s decision, he can proceed to the High Court to sue for negligence and to claim damages. This is considered the second level of punishment. “The doctor’s license has been withdrawn and there is compensation that has to be paid,” says Osanyin.

There are still third and a fourth levels of punishment, according to Osanyin, all of which have been meted out in Nigeria.

“Recklessness is a criminal aspect of negligence. Negligence is the civil aspect. When it is grievous or serious enough, that is called recklessness. So, the doctor can be charged to court for a crime of medical recklessness – homicide, attempted murder or attempted homicide. The doctor can now be sentenced. So, one single negligent action, three layers of punishment. There is another fourth layer: if the doctor, for example, works with the civil service, the civil service can sack him, so he has lost his job, lost his license.”

The Case for Settling

Many cases of medical negligence never even make it to court; instead, they are settled out of court. Deji Olunlade and Laolu Osanyin, both lawyers themselves, believe that settling out of court is better than going the route of court proceedings.

Osanyin points out, “All over the world, medical malpractice occurs. But there is a phrase we use: ‘All malpractice action should end at the door to the court room.’ Why will the patient sue you if you can restitute him?”

He emphasizes the importance of professional indemnity insurance to doctors, because with it, it is easy to settle with aggrieved patients and negotiate compensation. Of course, it is better to avoid such cases in the first place, but if negligence occurs, it is better handled by insurance companies.

Osanyin gives an example of a person whose leg was wrongly amputated. “They say okay, we are sorry, but the doctor has insurance coverage for about 50 million? So, let us pay 7 million naira, buy a prosthetic leg, give him some money to move around or buy a vehicle that can move around, give the vehicle corporate insurance and some extra change for discomfort.” Osanyin does say, however, that few Nigerian lawyers are well trained in medical laws and medical insurance.

Olunlade warns families to be well informed when taking this route. “As far as the settlement is concerned, once you settle, you sign and it has been adopted as judgment, that is the end of the case.”

The Hurdles

There are a number of challenges in prosecuting medical negligence in Nigeria, and Banji Amoo-Onidundu is well aware of them. The first hurdle for him was getting an autopsy from the hospital.

“We knew that such a case was a coroner’s case and they would carry out an autopsy. Five days after the incident, we attended a morning review. There, we told them that we wanted them to carry out an autopsy.” Amoo-Onidundu recalls that after the morning review, they obtained a coroner’s form, which was taken to the Pathology Department and stamped as received.

“We wanted the autopsy results so we wrote a letter, only to have the chairman of the Medical Advisory Council write us back on behalf of the medical director. He said that the death certificate suffices for what we wanted. It was like telling us to get lost,” says Amoo-Onidundu heavily, his hands punching the air as he speaks.

The letter from the University College Hospital was replied to by Amoo-Onidundu’s lawyer, followed by another from UCH. “They said that they had set up an investigative panel and that when the outcome of the investigative panel comes out, they will inform us of the results that they are able to gather,” recalls Amoo-Onidundu. He says that it occurred to him that the hospital might have been trying to buy some time so that the claim would become unenforceable per the Public Officers Protection Act.

The Law and Its Loopholes

The Public Officers Protection Act (POPA) is just one example of the legal loopholes in Nigerian law that can affect the prosecution of cases of medical negligence. Nigerian law has other gaps which can be used against Nigerian patients.

Bimpe Akingba, a Lagos-based lawyer who worked on a medical negligence case in 2013, mentions in particular the Pre-Action Notice. She says that certain organisations – usually government-owned organisations ­– will claim that notification is required before filing a case against them, and failure to do so can delay justice or even deny it altogether.

“Where the law requires a plaintiff to give pre-action notice to the defendant, failure to do so renders the suit incompetent and it may be dismissed. It is a condition precedent which affects the jurisdiction of the court to hear the matter. The condition must first be fulfilled,” she says. Nigerian lawyers debate the relevance of the pre-action notice even as it hampers justice.

“At the end of the day, the law precedes justice,” says Akingba. “The law sometimes opens doors through gaps for people to avoid justice.”

Another legal hurdle is the Public Officers Protection Act (POPA), which states that if you have any complaint against a public officer over anything he did in the course of his official duty and you want to take legal action, you must do so within three months of the occurrence of that particular grievance.

Lawyer Ikechukwu Ogu explains, “If you don’t report within three months, you have an unenforceable claim. It is a claim that you can no longer enforce. Once they file it and the medical doctor gets a lawyer, the lawyer will now say that the claim is unenforceable and he is barred by the Public Officers Protection Act.”

For the first three months after Juwura’s death, her husband was still in shock and mourning the loss of his wife. As he tried to raise an infant boy and a two-year-old girl without their mother, filing a case in court was the last thing on his mind.

“They were trying to buy our time so that as soon as that time lapsed, we would not be able to file the case. Because we had a lawyer in the family, she was able to tell us this. She told us that we had better go to court to file the case quickly.”

Deji Olunlade says that there are some exceptions to the POPA. For instance, if someone has a disability caused by the negligence – such as Lanre Amoo-Onidundu, for instance – the law does not apply. The law becomes applicable only when the person no longer suffers from that disability.

Time Changes Evidence

The Amoo-Onidundu family did not get all of the details that they requested from the hospital, but they are confident that once the trial begins, the hospital will make the necessary documents available. “When proper trial starts, we can subpoena all those things. They will have to make them available. The lawyer cannot prove his case without the materials. Then, the court will say to bring it.”

Yet in that time, so many things could happen. Medical records can be tweaked, says Deji Olunlade, referring to the challenges of getting evidence as a lawyer. “Once you say you want to make investigation as to how the treatment was made, they hide the record books so you do not get the information, and that is a major drawback. Though the court has its own process of getting the information, before you find the records, they could have been doctored – a lot things could have happened.”

Another thing that also happens is that with the ticking of the clock, self-defeating thoughts often creep into many Nigerian hearts, says Ikechukwu Ogu. “They will ask: ‘Will I even succeed? How long will it take? If I go there now, maybe the people will get the judge compromised or they will hire a lawyer better than mine. Or I will go there and seek one million naira after spending 500, 000 naira, and the judge may award 30, 000 naira.’”

In order to prove medical negligence, Osanyin says that it is important for the accused doctor to pass the “reasonable man’s test.” He says, “In medical law, it involves asking: ‘Would a reasonable doctor do this?’ So, you call his peer – we call a doctor with the same number of years in practice, in the same locality, not someone from Harvard – and ask him: ‘If you have this kind of patient, what do you do?’”

However, Olunlade admits that this reasonable man’s test is often difficult because doctors are reluctant to speak against other doctors. “Medical practice, if I am permitted to use that word, is like a fraternity. They will hardly testify against their fellow doctors.”

A Test of Patience

Like many other types of legal cases in Nigeria, medical negligence cases can take a long time, says Deji Olunlade. First, you file a case in court. Then, the other party has about thirty days to respond if they are a resident of the state in which the case was filed, or forty-two days to respond if they are not. After responding, the other party will brief their lawyer, and then they will ask for time in order to put in their defence. All of these steps take place before trial begins.

Olunlade says the process is both substantive and procedural: “The substantive part involves speaking about medical negligence, while the procedural part deals with basic procedures of filing papers, calling witnesses, asking questions [and so forth].” He says this can take some time before judgment (“roughly a year”) but that the case may not end there.

“After judgment, the other party may appeal. The Appeal Court does not adjourn your case for one month. If the Appeal Court hears your case in January, they will probably tell you to come back in April for adjournment, if you are lucky. Some of these judges can box down cases because when they look at their diary and see that there is no time to fix the case, then they adjourn for a longer time.” Between these rigorous schedules, judges go on a holiday between July and October.

Three years after the Amoo-Onidundu case was filed in court, the trial commenced on July 6, 2014. Then, the case – held at the Federal High Court in Ibadan – was adjourned until October 22, 2014. The University College Hospital said they no longer needed the services of the lawyer on the case, and because of this, the case could not proceed that day.

Many Nigerians have lost faith in the judicial system – which should be the last bastion of hope for the people – because many judges have been implicated in corrupt practices. Olunlade says with regret, “I am forced to admit that we have a corrupt judiciary. Some take bribes (we have seen it); some have been dismissed; some are undergoing trials. A judge undergoing trial. Imagine!”

When asked how long it may take for the Amoo-Onidundu case to conclude, Olunlade says, “It may take as long as ten years.”

Amoo-Onidundu says, “What I want is to get justice. I know that once I get justice, every other person gets justice. It doesn’t mean anything to me whether it takes twenty or ten years, but it is important to get that justice. In our government, our politics, because there is no judgment, people take everything for granted.”

As the wheel of justice slowly grinds, Juwura’s four-year-old son, Titobioluwa, asks his father, “Where is my mummy?” His puzzled father waits and hopes that justice will be served, and that by getting that justice, he will give voice to others who have suffered from medical negligence – and that such grievous errors might someday be reduced.

Ten Steps to Take Before Prosecuting Medical Negligence

1. Get your facts right. When exactly did the negligence occur? Did you incur bodily or emotional harm from the experience? Did a doctor explain your treatment options and consequences to you?
2. Get an expert opinion from a doctor. Find out what another doctor would have done in the same scenario.
3. Consult a lawyer. They know the right things to say.
4. Write a letter to the doctor or hospital involved. Better yet, let your lawyer write it. The case may be settled out of court.
5. If you have to go to court, be aware of the Public Officers Protection Act and file the case within three months of the offence.
6. Get your medical case file as quickly as you can.
7. Gather as much evidence as you can.
8. Follow through with the legal proceedings, because cases can be thrown out for non-diligent prosecution. If somebody files a case and does not prosecute it within a certain time frame – three months, six months, a year – the judge will throw it out.
9. Brace yourself. The road to justice may be long, and you will need courage to last you through the duration of the case.
10. Do all of the steps listed above.

*(Not her real name. In Nigeria, epilepsy carries a great stigma both for patients and their families.)

Did you miss Part 1 of our special three-part series on medical negligence in Nigeria? Check it out here: Part 1: Medical Negligence in Nigeria: When Hospitals Kill