Legal Perspective to Medical Negligence III: Medical Practioner's Responsibility, Aspects of the Law of Negligence, Proof of Negligence and Burden of Proof

Author: Dada Damilola GideonEdited and published by Okediya Peter O.

Medical practitioner’s Responsibility 

The responsibility of a medical practitioner towards a patient commences as soon as the medical practitioner consents to undertake a medical examination of the patient. However for surgical maneuver, a written consent of the patient is vital before treatment is embarked upon. A medical practitioner must never presume the consent of a patient. The responsibility of a medical practitioner toward a patient ceases when a patient decides to discontinue with a particular practitioner[1].

 Aspects of the Law of Negligence

Negligence as a tort is a breach of legal duty to take care of one’s patients, which results in damages undesired by the defendant to the plaintiff. Thus it constitutes;

(a) a legal duty on the part of A toward B to exercise care in such conduct of A as falls within the scope of the duty

(b) breach of that duty

(c) consequential damages to B.

The necessary objective attitude of the court to this tort is made clear in what

Alderson, B said in Blyth v. Birmingham Waterworks Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. It is not for every careless act that a man may be held liable in law. The most accepted expression of the duty principle is the one made by Lord

Atkin in the leading case of Donoghue v Stevenson. The plaintiff’s friends bought her a ginger beer in a café, she drank some of it and as she was helping herself to a second glass, the remains of a decomposed snail floated to the top of her glass. The nauseating sight of this and the impurities she already drank resulted in a shock and severe gastroenteritis. The case went all the way to the House of Lords on the preliminary issue as to whether a duty of care existed. The question for the House of Lords to decide was: if a company produced a drink and sold it to a distributor, was it under any legal duty to the ultimate purchaser or consumer to ensure reasonable care that the article was free from defect likely to cause injury to health? Lord Atkin stated: the English law states that there must be and is, some general conception of relations given rise to a duty of which the particular cause found in the books are but instances. He went on to lay down the basis of the present law in the “neighbour” principle. He suggested that there is an existence duty of care towards anyone who is likely to suffer injury through the defendant’s careless conduct. If a duty of care exists then the next inquiry is whether the defendant’s conduct was in breach of such duty. The mere occurrence of some misfortune does not as a rule make someone automatically liable. The judge must look at the evidence and decide whether or not the defendant did something he ought not to have done or failed to do that which he ought to have done. Contractual Negligence

It is possible for a duty of care to arise from an undertaking created as a result of

contract. If the patient was treated privately that is if the patient entered into a

contractual relationship with his doctor the question may arise as to whether his chances

of success are higher in tort or contract. In theory his chances may be higher in contract

if the contract was a most unusual one. In such case the doctor guaranteed that the

treatment would succeed. But doctors seldom, if ever, make such guarantee and the

court would be highly averse to imply any such term to that effect.

Proof of Negligence

It is up to the plaintiff to prove generally those acts or omissions that he claims amount to negligence. What the plaintiff has to prove before a court to hold the defendant liable may in many cases not be available, that is direct evidence. There is also another way in which the plaintiff’s task is made easier. This is the doctrine of res ipsa loquitur (the thing speaks for itself). The rule can be invoked when the following conditions are met. The injury must be such as does not occur in the ordinary cause of event involving the absence of negligence, the facts proved must point to the defendant as being the negligent party, and there must be absence of explanation[2].

Burden of Proof

Section 135 (1) of the Evidence Act stipulates that “Whoever desires any court to give judgment as to any right or liability dependent on the existence of facts which he asserts must prove the those facts exist” while section 136 of the same Act places the burden of proof on the person who would fail if no evidence was given on either side. In medical practice, the existence of a legal duty of care is of the very essence and presents no difficulty. That there has been a breach of that duty, which may be presumed by the mere fact that the plaintiff has been injured or harmed (res ipsa loquitor) but that the injury suffered was a direct consequence of the breach may be difficult. The defendant is no required to prove that he exercised such skill and competence as it would be reasonable to expect from a medical practitioner of his class (that he was not in fact negligent), the law will presume this. The onus of proof lies on the plaintiff; the burden is not so heavy as consideration of the criteria of proof would seem to indicate.

Damages Awarded by Courts

Damages are awarded for the injury itself and the consequence of the injury such as pain. The damages should be such that the ordinary sensible man would consider fair in the circumstances. For a successful claim for damages, a victim must establish that he has suffered a legal injury by the acts or omission of the defendant which has resulted in loss to him. Such a loss must however be attributable to the acts or omission of the defendant. Damages are either compensatory, special, aggravated or exemplary[3].

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[1] Eric Okojie LL.M, BL University of Benin (professional medical Negligence in Nigeria para 4

[2] Eric Okojie LL.M, BL University of Benin (professional medical Negligence in Nigeria para 5)

[3] Eric Okojie LL.M, BL University of Benin (professional medical Negligence in Nigeria para 10)

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