CHAPTER ONE

GENERAL INTRODUCTION

1.1. BACKGROUND TO THE STUDY

The very existence of human beings meant that from time to time man would require
medical attention. So, the practice of medicine evolved from the time of human creation,
even though it may not be as sophisticated as it is today. Medicine, like any other human
endeavor, is practiced by human beings and human beings are liable to making mistakes in
the discharge of their duties. Medical negligence results therefore from fallibility of human
beings. The phenomenon of medical negligence therefore has existed for a long time both in
First World States like the United Kingdom and the United States of America and in
emerging economies like Nigeria. While in the developed countries, people are very much
aware of their various rights and their system encourages them to know their rights and
ensure that all reported cases are treated with every sense of urgency and or the seriousness
they require. But in developing countries like Nigeria people do not know their rights and
there is paucity of information regarding professional negligence. When negligence occurs in
other spheres of life it may be easily managed.
Medical practice has attained sufficient status to the extent that principles of law that
are relevant to Medical practice and can now be examined under the concept of Medical law.
Medical law can therefore be described as the branch of law dealing with Medical practice or
the Medical profession.
Medical profession is one of the noblest professions in the globe and the practice of
medicine is a spiritual call to serve humanity. In the process of this service a lot of incidents
or accidents may occur; particularly in medical arena. People believe that preventable injuries
have been identified as strikingly common occurrence in all aspects of modern health care.
The term Epidemic of error was devised in the United Kingdom as well as, in the United
States of America. The Institute of medicine acting under the National Academy of sciences
has identified errors in healthcare as leading cause of death and injury, comparable with
that of a road accident.1 The precise extent of this problem is open to question, but it is
beyond argument that an unacceptable number of people suffer serious harm or die as a result
of some avoidable adverse events.

1
I.T. Kohn, J.M. Corrigan and M.S. Donaldson (eds), To err is human; building a safer system, (Washington,
D.C., National Academy press, 2001)

1
 In many areas of human activity, there is a strong tendency to attribute blame for
accidents, which on further investigation may be shown not to involve any culpable conduct.
This is a particular issue in medical practice where the consequences of an error or a violation
of rights may be very severe.
The medical profession is one of the most sensitive careers because it deals with the
survival of human beings. However, the medical experts, while discharging their duties are
occasionally negligent in strict adherence to the established Professional Code of Conduct. In
Nigeria, there exists a myriad of delinquencies in which the medical personnel involved go
scot free because of legally perceived obstacles in enforcing such rights.
The current standard by which negligence is assessed in law is that of reasonableness
reasonableness in respect of knowledge, skill and care. However, a great deal depends on the
way in which it is tested. An expert can hardly be expected to say that it is reasonable to give
a patient the wrong drug. However, if a question is focused on the person who is a human
being, and asks was this the sort of mistake a reasonable practitioner must make?. The answer
will be different. As we shall see, there is evidence that in fact all the doctors make
slips/errors at some time or the other, including in drug administration. This problem affects
all societies and what has been discussed here applies generally though, few applies to
specific countries. The legal principles involved are discussed in the context of common law
systems. While they may differ in detail, these systems share the same basic approach.
Reference is therefore made in some of the decisions of courts in the UK, the U.S.A., New
Zealand, Australia, Canada, and India. Because errors and negligence raise issues of both
civil and criminal liability and may also fall within the scope of professional discipline, we
have taken all these jurisdictions into account.
The word negligence may be used in different ways because what is negligence in
common parlance may fall short of negligence at law. In law, negligence and duty go
together the two are correlatives to each other. For a surgeon to be negligent he must owe a
duty to another. This means that in the absence of legal duty, there can be no negligence in
the legal sense and no legal consequences too. The law concerning negligence applies
generally to everyone undertaking a daily routine within their usual endeavors or
employment.
In a strict legal sense, no distinction is drawn between the negligence of a doctor,
plumber or window-cleaner.
As it was said earlier in this chapter, this area of the law is still largely undeveloped

2
because of illiteracy and lack of awareness on the part of healthcare providers and the
recipients alike, as well as religious beliefs on the part of most victims of medical
malpractice, especially from Northern Nigeria. In order to make a considerable impact on
this thesis on the tortious liability of medical personnel in Nigeria, there is need for proper
analysis of the available literature and cases, restatement of legal rules and recommendations
for reforms in this area
Against the above backdrop, this thesis aims at investigating the tortuous liability of
medical practitioners with a view to determining the extent of the liability arising therefrom.
It is intended to analyse the the concept of medical negligence and make recommendations
for improvement.

1.2. STATEMENT OF THE PROBLEM

The growing incidence of medical negligence in Nigeria are becoming more
alarming as numerous cases are being brought before the courts against healthcare providers
for medical negligence. This coupled with the awareness of medical negligence due to the
improved education of the populace and the increasing least access to medical information.
However, negligence by medical practitioners is hard to determine by judges as they are not
skilled in medical science. Many studies have shown that alternative dispute resolution is
often an effective tool for resolving civil cases except criminal cases. In fact, in some
jurisdictions, settlement of medical negligence claims by means of alternative dispute
resolution is encouraged. Nonetheless, whether it is by litigation or by settlement out of court,
there must be some standards to determine the extent of liability. Since it is neither possible
for the law nor for a judge to foresee all circumstances when a surgeon, as argued earlier on,
could be held liable due to the fact that each case of medical negligence is unique on its own.
It is desirable that every case must be decided on its own merit. This has posed a great
challenge to a judge in deciding cases of medical negligence. Because there have been
complaints here and there of medical negligence pertaining to medical practitioners, so, there
is the need to ascertain the veracity or otherwise of such claims regarding the overall
performance of medical practitioners.

1.3. RESEARCH QUESTIONS

In view of the above, the research questions are as follows;
i). What is negligence and what does medical negligence connote?
ii). How cordial is the relationship between the medical practitioners and patients?
3
iii). When does liability against a medical practitioner arise?
iv). What are the remedy available to a victim of medical negligence?
v). How effective are the laws regulating medical practice in Nigeria?

1.4. AIM AND OBJECTIVES OF THE THESIS

The Broad aim of this study is to analyze The Tortuous Liability of Medical
Practitioners in Nigeria. Other specific objectives are:
i). To analyze the legal implications of the breach of duty by medical professionals on
patients particularly as it relates to liabilities under civil and criminal law.
ii). To identify the categories of personnels involved in the practice of medicine in Nigeria
and determine the tortuous (civil) liabilities for malpractice committed in the course of
carrying out their duties.
iii). To examine the defences available to the medical practitioners after the breach
iv). To see that the medical professionals who have defaulted in carrying out their duties to
their patients must be strictly liable.
v). To enlighten Nigerians of their rights and the need for them to seek redress once these
rights have been infringed upon for they have the right of redress in law against health care
providers who perpetuates professional malpractice on them.

1.5. SCOPE AND LIMITATION OF THE THESIS

The issue of negligence is a global phenomenon, but for purposes of this thesis, the
study is limited to Nigeria. This thesis will cover the Federal Republic of Nigeria comprising
Thirty-six states, the research shall also cover the laws of medical malpractice in Nigeria
during and after colonization, up to the present date, especially, the law of torts. Although
references shall be made to other countries. The thesis shall also be centered around the
problems of medical malpractice in Nigeria, that is, the legal responsibilities of the healthcare
providers and the rights of their patients.

1.6. RESEARCH METHODOLOGY

This study adopts the doctrinal method of research, information and data was
collected from two sources — primary and secondary sources. Under the primary sources
reference shall be made to statutes and decided cases. While the secondary sources reference
shall be made to internet materials, views of learned writers in their textbooks and journals,
articles on medical negligence, dictionaries, magazines, newspapers and periodicals.
4
1.7. LITERATURE REVIEW
There are many writings on medical negligence worldwide and in Nigeria. Some
authors have written on the meaning of negligence or what negligence entails. For instance,
Winfield has defined negligence as a tort which is a violation of a legal duty to take care
which results in damage, undesired by the defendant to the plaintiff. An act involving the
above ingredients is a negligent act,2 Baron Alderson3 defines negligence as an omission to
do something which a reasonable man would do, being guided by considerations of normal
human affairs, or doing something which a prudent and reasonable man would not do.
Charlesworth4 modifies Alderson’s definition and defines negligence as a tort which involves
a person's breach of duty that is imposed upon him to take care; resulting in damage to the
complainant.
Herring Jonathan5 dwells on the elements of medical negligence which pertains to the
duty of care owed to the patient, the default in the exercise of that duty resulting to damages.
It was a further submission of the author that whether or whether not a duty is breached
depends on the facts of each case. The contention was based on the fact that doctors are
meant to make patients better, not worse. The author opines that where there is connections
between the wrongful act of the doctor and the resulting injury to the victim, the act would be
deemed as the cause of the injury.
McCarthy6 wrote on criminality of medical negligence. The work argues that where
the level injury caused to a patient is high; such a doctor should be prosecuted under criminal
law. The author states that where a medical practitioner has taken a substantial risk with the
patient’s safety or wellbeing, the award of compensation for negligence will not suffice. On
this note, he concluded that judges should evaluate a practitioner’s conduct to decide if the
behaviour demonstrates criminal misconduct causing significant danger to the physical or
mental wellbeing of the patient.
B.C Umerah7 wrote on the relationship between patient and doctor. The author noted
that once a doctor undertakes to treat a patient, whether or not there is an agreement between
them, a duty of care arises.

2
W. V. H., Rogers, Winfield and Jolowicz, Tort, 17th ed.,( London: Sweet & Maxwell)
3
Blyth v Birmingham Water Works Co., [1856] 11 Ex Ch 781
4
Charlesworth, Negligence, 6th ed, (Sweet and Maxwell, London 19), P. 578-580.
5
Herring Jonathan: Medical Law Express, 3rd ed (Birmingham, U.K., Pearson Ltd, 2011).
6
McCarthy: “Malpractice, On Advance for Nurses”, http//nursingsadvanceweb.com//continuing/CE,
Articles.>accessed 16 August 2023
7
B.C. Umerah, Medical Practice and The Law in Nigeria, (Longman, Nigeria, 1989), at P. 122.

5
 Akintola8 argued that failure to take medical history by a medical practitioner to
enable him effectively treat and/or detect ailment of a patient is very inimical and thus
activate the patient’s rights to sue for negligence. He concluded with the expression that if a
doctor fails to take such history, he will be liable in negligence.
The works of these authors are relevant to this thesis because they have been able to
provide a background study into medical negligence and how it may arise. However, they
have not been able to undergo a detailed research into how to determine and measure liability
of a medical practitioner.
The exploration of the existing literatures available on this study shows that the issue
of medical negligence has been addressed by authors, international institutions and non-
governmental organisations. This actually reveals that the medical practitioners must be
cautious while treating their patients as there is nothing wrong for a patient to sue for medical
negligence. However, most of the available literatures are general discussions on medical
negligence. In fact, those that appear to be specific in nature only limited their scope to other
jurisdictions and not directly related to Nigeria. More so, the available literatures on Nigeria
have not sufficiently addressed the question of how to measure or determine medical
negligence. Thus, most of these omissions or gaps will be addressed in the course of this
research. It is expected that this research will improve on the existing literatures and offer
some guidelines for future reference.

8
Akintola, S.O., (2002) “Medical Negligence in Nigeria: An Appraisal” Volume 1 University of Ado-Ekiti Law
Journal, 35-46

6
 CHAPTER TWO

CIVIL LIABILITY OF MEDICAL PRACTITIONERS AND

NEGLIGENCE AS THE BASIS OF LIABILITY

2.1. INTRODUCTION
This chapter shall discuss the civil liability of medical practitioners and the nature of
negligence of medical practitioners and, some instances of tortious medical malpractices
properly analyzed. The civil or tortious liability of quacks and native doctors shall also be
properly analyzed, with a view to making useful suggestions. Meanwhile, before the Chapter
begins properly, a medical practitioner may be defined as anyone who holds out himself as a
person who undertakes the cure or treatment of human ailments, or anyone who undertakes to
provide health care delivery. While a patient may be defined as a person who request for
medical service from a medical practitioner.
In Nigeria there is an alarming increase of medical negligence and this is due to lack
of available work force and infrastructure in the health sector. Most Nigerians have
experienced a terrible state of care by healthcare providers. These healthcare providers are
generally called the medical practitioners.

2.2. CIVIL LIABILITY OF MEDICAL PRACTITIONERS

When health care providers are alleged to have failed to observe the legal principles
and standards concerning the care of patients, civil litigation may result. The most common
and potent basis of civil liability for medical malpractice cases is negligence. 9 Thus, where a
health care provider administers treatment to a patient negligently and injury is caused to the
patient, he may sue for negligence against the provider for the injury suffered. The rationale
for liability for negligence of a health care provider is that, someone harmed by the actions of
such a provider deserves to be compensated by the injuring party.
In law, a plaintiff must establish three elements in order to succeed in an action for medical
negligence. The elements include:
a). That the health care provider owed the plaintiff a legal duty of care;
b). That the provider was in breach of that duty;
c). That the plaintiff suffered injury/damage as a result of the breach.

9
D. Giesen, International Medical Malpractice Law (Mohr & Martins Nijhoff, 1988), p. 13.

7
 In Nigeria, there is no statute that provide for the Civil Liability Of Medical
Practitioners instead these liabilities are governed by the general law in the Medical & Dental
Practitioners Act of Nigeria 2004 and the Code of Medical Ethics in Nigeria 2008.
Also the Hippocratic Oath taken by doctors lay down certain guidelines for medical
practitioners. It implies the need for coordinate instructions before the registration of doctors,
that is to say that the public is to be protected from quacks and that a doctor is there, for the
benefit of his patients and as such must do the best of his ability to do good to them and
refrain from doing anything that might harm them. Euthanasia nad abortions are proscribed,
so also is mutilating operations. The relationship between the doctor and his patient is
outlined as fiduciary. The oath goes further to express in no uncertain terms the doctrine of
medical.
Furthermore the International Code Of Medical Ethics (1964) reaffirmed the need for
the physician to exercise good skill and care as the Declaration of Helsinki developed by The
World Health Organization.
It is against this backdrop, that an attempt will be made to examine the tortuous
liability of a medical practitioner

2.3. MEANING OF TORTUOUS LIABILITY

To achieve this, there is the need to refer to learned authors in this area. According to
Winfield; tortious liability may be defined as that which arises from the breach of a duty
primarily fixed by law, thus duty is towards persons generally and its breach is redressible by
an action for unliquidated damages. This liability shall be discussed in another chapter

2.4. NATURE AND CONCEPT OF NEGLIGENCE OF MEDICAL PRACTITIONERS

In medical treatment, negligence is no different in law from negligence in any other
discipline. The standards’ and procedures are the same, whether for liability, for causation or
for compensation. The term negligence may be used in numerous ways. Negligence may
connote carelessness but this is not a legal connotation. This is because it cannot be
acknowledged as the precise and suitable meaning of the term negligence since what is
negligence in common parlance may fall short of negligence at law.
A well known principle of negligence is expressed by Winfield and Jolowicz 10 in
their
10
W. V. H., Rogers, Winfield and Jolowicz, Tort, (17th ed., London: Sweet & Maxwell, 2006), p. 132.

8
book when they observed that;
“Where anyone practices a profession or is engaged in a transaction
in which he holds himself out as having a skill, the law expects him to
show the amount of competence associated with the proper discharge
of the duties of that profession, trade or calling and if he falls
shortof that and injures someone…he sis not behaving reasonable”

Furthermore, in law, negligence and duty go together. The two are correlatives to one
another. Lord Baron Alderson,11 150 years ago, said;
“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.”

This definition raises question as to reasonable man and test to determine a person as
reasonable man. It cannot be regarded as a detailed meaning in terms of law as the concept of
the duty of care was not mentioned. This is for the obvious reason that mere negligence in
itself does not give a cause of action and to give a cause of action, the negligence must be one
which amounts to a breach of duty towards the person claiming negligence.
Medical negligence constitutes an act or omission by a medical practitioner, which
falls below the accepted standard of care resulting to injury or death of the patient. Medical
negligence is hinged on the tortious principle of negligence as propounded by Lord Atkin. 12
He established a general duty to take reasonable care to avoid foreseeable injury to another.
In medical practice, the standard of care required is usually contained in the rules of
professional ethics for medical practitioners. In Nigeria, the Medical and Dental Council of
Nigeria set the standard of care. Other medical bodies including the Nigerian Medical
Association, the Medical and Dental Consultants Association of Nigeria also have principles
or ethics guiding their members with disciplinary measures in place to ensure compliance.

2.4.1. Medical Errors Versus Medical Negligence

There seems to be a very thin line between acts that constitute medical negligence and

11
Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781
12
Donoghue v Stevenson (1932) AC 562

9
medical errors. A medical error is a commission or an omission with potentially negative
consequences to the patient that would have been judged wrong by skilled and
knowledgeable peers at the time it occurred, independent of whether there were any negative
consequences. Acts that constitute medical errors may or may not give rise to a claim in
medical negligence. Under the extant principles of negligence, not all medical errors and
malpractices will qualify as an act of negligence. For instance, a medical error may not give
rise to any injury or damages and thus, a claim of negligence hinged solely on such an act is
unlikely to succeed. Such an act may however give rise to a disciplinary action against such
medical practitioner by the Medical and Dental practitioners' Disciplinary Committee hinged
on a breach of medical ethics.

2.5. PROOF OF NEGLIGENCE

The quantum of proof in civil action is a preponderance of probability. The plaintiff
had to adduce evidence to show that the medical practitioner was negligent. Generally, in
medical malpractice cases, it may be difficult for the patient plaintiff to prove negligence
because he may not know what happened. In view of this difficulty of direct proof of fault
and of the causal nexus between the fault and injury, the court may allow the plaintiff to rely
on the doctrine of Res Ipsa Loquitur. 13 Literally, this maxim means, "The event speaks for
itself". In its inception, Res Ipsa Loquitur was nothing but a reasonable conclusion from The
circumstances of an accident that, the accident was probably due to the defendant's fault,
In England, however, the decision in Mahon v Osborne,14 raised the issue whether the
rule of res Ipsa loquitur only applies if the event is a matter of common experience, so that
special experience of an expert is irrelevant. Boddard L.J. held that the doctrine applies where
swabs have been left in the body of a patient after an abnormal operation. But Scott L.J.
thought it that where the judge would not have enough knowledge of the circumstances to
draw an inference of negligence, as in the case of surgical operations, the doctrine did not
apply.15
However, the Court of Appeal has held it to be prima facie evidence of negligence
that a man, on leaving hospital after a course of radiography treatment to his hand and arm,
had four stiff fingers and a useless hand.16
There are further requirements which must be supplied for the rule of res Ipsa loquitur

13
J. Cooke, Law of Tort, (Pitman Publishing Co, Lodon, 1992). P161
14
[1939] 2 KB 14
15
lbid. at P. 23
16
Cassidy v Ministry of Health [1951] 1 All ER 573

10
to apply, that, the plaintiff must prove not only that;
(1) the event is of the kind that ordinarily does not occur in the absence of someone's
negligence, but also that it was caused by an agency or instrumentality within the exclusive
control of the defendant. This is illustrated by the case of Scott. v The London St. Katherine
Dock Co.,17 where bags of sugar fell on the plaintiff, while he was lawfully passing the
doorway of the defendant's warehouse. The defendants called no evidence. Erie C.J. said:
“There must be reasonable evidence of negligence, but where the thing is
shown to be under the management of the defendant or his servant and the
accident is such that in the ordinary course of things does not happened if
those who have the management use proper care, it affords reasonable
evidence in the absence of explanation by the defendants, that the accident
arose from want of care.”

(2) The second requirement is that the accident was not due to any voluntary action or
contribution on the part of the part of the plaintiff .18 The effect of the last condition is that it
may create some problems because the plaintiff is normally unconscious and does not know
what he or the defendant happens to be doing. His natural bodily reaction or condition, which
may have contributed to the final harm, is certainly neither wilful nor controllable or
observable by himself in most cases and yet can absolve the medical practitioner from
responsibility. It is therefore recommended that, the last condition should be abrogated.

2.5.1. Instances of Negligence (civil liability) of Medical Practitioners

If a medical practitioner performs treatment to a patient in a way or manner, which is
negligent, and thereby causing harm to the patient, the patient may institute an action against
such a doctor to recover damages for harm suffered. Liability for negligence can only arise
where there is a legal duty to take care either in contract or in tort. 19 This implies that for the
plaintiff to succeed. in his case, he must prove that the doctor was negligent and this stands
discharged if he can show that:
(a) the doctor owed him a duty to use reasonable care in treating him;

17
[1865] 3 H & C, 596
18
R. Crawford Morris and R. Alan Moritz, Doctor and patient and the Law, 5th ed, (C.V. Mosby Co., Saint
Louis, 1971). P. 326.
19
Charlesworth, Negligence, 6th ed, (Sweet and Maxwell, London 19), P. 578-580.

11
 (b) that the doctor had failed to exercise such care, that is to say that he was inbreach
of that duty and; that the had suffered damage or injury as a result of the breach

He needs not show that there was agreement between him and the doctor to avoid
causing damage or harm before succeeding in his case. Authority for this proposition is the
case or R. v Bateman.20 in that case, the appellant a panel doctor practicing in one town called
Deptford, was convicted of manslaughter of a patient call Mary Ann Harding and was
sentenced to six months imprisonment by the trial court for criminal negligence. He had
actually been called in to attend to the patient on her confinement. After finding that her case
was a difficult one, he first attempted unsuccessfully to make her deliver by the use of
instruments, after administering Chloroform; he then tried perform manual operation called
"version", after an hour the child was born dead. Five days after the delivery of the child the
patient was then very seriously sick and was removed to the infirmary, where she died two
days after. The charges preferred against him and for which he was convicted were:
(a) that in the performing of "version" he had occasioned an internal rupture;
(b) that with the placenta he had removed part of the uterus and;
(c) that he had unduly delayed in sending the patient to the infirmary.

On appeal, his conviction for criminal negligence was quashed and was instead
convicted for civil negligence. The court, then observed with regards to civil liabilities of
doctors as follows;
“If a person holds himself out as possessing special skill and
knowledge, and he is consulted as possessing such skill and
knowledge by, or on behalf of a patient to use due caution in
undertaking the treatment. If he accepts the responsibility and
undertakes the treatment and the patient submits to his direction and
treatment accordingly, he owes a duty to the patient to use diligence,
care, knowledge, skill and caution administering the treatment. No
contractual relation is necessary, nor is it necessary that the service be
rendered for reward.”

Going by the above quotation, it becomes obvious that no contractual relation is

necessary, nor is it a requirement that the service be rendered for reward. This means that the
20 .
[1925] 94 KB 791

12
plaintiff in a malpractice suit needs not prove the existence of a contract or that the service
was rendered in expectation of a certain reward promised before he can succeed. The reason
for not making contract a condition for doctor's liability in negligence is not unconnected
with the fact that there are two ways in which a doctor may be held liable to his patient; one
is through contract and the other is through tort. This means that if there is an agreement
between him and the patient as to how to go about with the treatment, his liability may be
based on breach of that contract. But where there is no contract, the his liability will be in
tort. Therefore, here, the criterion it has been submitted is that since he is engaged in a kind
of work that involves endangering some one's life, he is then automatically under a duty of
care not to do anything that will cause someone his life
There are many instances of civil liability or liability in negligence of medical
practitioners. Some of the instances, which we are going to consider here are;
i). Improper diagnosis,
ii). Treatment
iii). Maladministration of drugs
iv). X-ray injuries,
v). Anesthesia
vi). Surgery
vii). Blood transfusion mishaps
viii). Abandonment.

Other instances include; failure to refer or transfer a patient in good time when such a
referral or transfer was necessary; failure to do anything that ought reasonably to have been
done under any circumstance for the good of the patient; failure to see a patient as often as his
medical condition warrants or to make proper notes of the practitioner's observations and
prescribed treatment during such visits or to communicate with the patient or his relation as
may be necessary with regards to any developments, progress or prognosis in the patient's
condition.

2.5.2. Options Available to Patients Who Are Unable to Establish Negligence

It is thus important to discuss the alternative options available to a patient who is
unable to establish negligence or a patient who is a victim of medical wrong or error.
These
options includes;
13
i) Breach of Contract: A patient who has suffered some form of damage or injury in the
course of treatment may bring an action for breach of contract. This may be a viable option
especially in cases where negligence cannot be proved.
There is an implied existence of a contract in cases where a patient submits himself
for treatment. This contract requires the doctor to exercise reasonable skill and care in the
treatment of patients. The rationale for this as seen in most breach of contract cases is that the
medical practitioner is made to put the patient in the position he would have been if treatment
were properly performed.
In other words, a claim for damages will lie where the breach of the medical
practitioners' contract has caused the patient to incur some extra costs. To succeed in an
action for breach of contract unlike in negligence cases, the patient must prove the existence
of a doctor-patient relationship, breach of the implied / express term of the contract, and
injury arising from or in the course of treatment.

ii) Option to Sue for Breach of Human Rights: Liability for medical error or malpractice may
also validly arise as a breach of a patient's human right. The relevant basic human rights of a
patient must be borne in mind and safely guarded, in the course of their treatment by medical
practitioners. The patient's autonomy should also not be disregarded by attending physicians.
The right of the patient to make final and conclusive decision about his medical care is well
recognized under the principle of patient's autonomy, and also well enshrined in the human
rights of persons. The right to personal liberty and self-determination may also be implied in
some medical cases to buttress autonomy. The use of a right-based approach to deal with
issues in medical practice is not to “play the blame game” or to punish erring individuals but
primarily to form a basis for practical accountability on the part of government and health
care providers in the provision of health care services to citizens. This will result in safe,
functional and effective health care systems.
The right to health has been widely interpreted to include the right to freely make
decisions on issues pertaining to one's health and to have access to information on one's
health issues and available. Treatment options. Failure to provide information on all
available treatment options may thus give rise to liability for negligence and breach of the
patients' right to health. A duty is owed by the medical practitioner to inform a patient for
instance of the new knowledge of risks of products. The 2014 National Health Act in
Nigeria contains provisions that emphasize the right of a patient to be informed of his health
status, treatment options available, the benefits, risks, costs and consequences of such
14
options. The right to privacy has been held by the courts to include the right of a mature adult
to refuse treatment that may prolong his life even though such refusal may seem unwise,
foolish or ridiculous to
others.

iii) Fiduciary relationship: Under the rules of equity, a claim may also be hinged on the
recognition of a doctor-patient relationship as one, which imposes a fiduciary duty on the
medical practitioner. A fiduciary duty to protect the patients' interest may be imposed on the
medical practitioner in favour of the patient. This was successfully done in Norbery v
Wynrib,21 where the court upheld this view to uphold and defend the patient's
fundamental and personal interest. There are also cases where the patient suffer
damages or injury but has no valid claim against the medical practitioner.
The fiducial relationship between the patient and medical practional will arise where
the patient has given informed consent or where the medical practitioner acted based on
compulsion to save the life of the patient. An apt example will be the removal of a patient's
uterus, which refuses to contract during a caesarean section operation. The medical
practitioner's action is unlikely to amount to negligence especially in circumstances where his
actions were in good faith and in the best interest of the patient.

2.6. CIVIL LIABILITY OF QUACKS AND NATIVE DOCTORS

A quack or a native doctor is one who is not qualified under the Medical and Dental
Practitioners Act,22 to practise as a medical practitioner in Nigeria. Any unqualified or an
unlicensed person, who undertakes medical treatment is required by law to exercise the same
degree of skill, knowledge and diligence, as a person qualified to practise the profession is
required to exercise. His guilt will not arise merely because he is unqualified or because he is
not authorised to practise, but also if he falls short of the standard required of a qualified
practitioner.23
It would appear from court decisions that native doctors are placed. on the same level
with quacks with regards to negligence.
In the case of, R. v Yaro Paki and anor,24 the first accused was charged
with
21
[1992] 2 SCR 226
22
Cap. M8, Laws of the Federation of Nigeria, (LFN) 2004.
23
See B.C. Umerah, Medical Practice and The Law in Nigeria, (Longman, Nigeria, 1989), at P. 122.
24
[1955] 21 NLR 63.

15
manslaughter for operating on the tonsils of his patient who subsequently died. The second
accused who was charged with aiding and abetting by holding the patient's head during the
operation, was discharged and acquitted on the ground that the operation on the tonsil's by the
first accused was not itself an unlawful act like an operation to bring out abortion.

2.7. DISCHARGE AGAINST MEDICAL ADVICE (DAMA)

The basis for legally administering treatment on a patient is hinged on the fact that the
patient whether expressly or impliedly gives his consent. In law, treatment is not to be
administered without consent and it is not sufficient excuse that it was done for the benefit of
the patient. Discharge against medical advice (DAMA) is a recognized phenomenon in
hospitals with potential medico-legal implications on the hospital authority and medical
staff. Both the Professionalism Charter and the law recognize that patients are mature
individuals who have the right to take a DAMA, for which the attending physician may incur
liabilities where he opposes without reasonable justification. In the exercise of such rights
however, medical staff must be wary of avoiding deficiencies and must put in place proper
procedures and documentation of cases where the patients insist on DAMA. Lawsuits related
to discharges seem more common among those discharged against medical advice. Well-
executed DAMA forms have been found to protect physicians against litigation and indeed,
will be a useful and compelling piece of evidence to help establish a defence for the physician
from any liability in any civil suit, which may be instituted against him. Prescribed procedure
is that the attending physician should administer DAMA.
Indeed, if possible, because of the sensitive nature of the process, the most senior
doctor should administer the document. In some cases, where the patient or the family feel
the closeness and empathy of the experienced physician, the decision to DAMA may be
reversed.
The physician is expected to assess the DAMA form for adequacy and proper filling
and failure to do so may be fatal where defence in an action on negligence is hinged on
DAMA. In situations where the patient refuses to sign the DAMA form, the content should
be read out aloud and patient's refusal to sign documented; the fact that the patient was made
aware of the risks of leaving should also be documented. Inability to properly administer the
DAMA form as part of the discharge process is equivalent to an act of negligence with legal
consequences. Indeed, the need for the patient to be well informed prior to signing the form
cannot be over-emphasized and thus, the signing of the DAMA form should only be a
confirmation that a detailed conversation, which had helped the patient come to the decision
16
to seek DAMA has taken place between the patient and the physician. Until that is done, the
patient cannot be said to have enjoyed his full autonomy and the medical personnel may be
culpable in a law court for infringement of the patient's fundamental human rights and more
specifically, liability for negligence.

2.8. DUTY OF CARE

In terms of medical negligence, the term duty of care is synonymous to the concept of
the undertaking towards the patient. The duty of care involves:
(a) Duty to possess special skill and knowledge;
(b) Duty to use caution in treatment/diagnosis;
(c) Duty to use diligence, care, knowledge, skill and caution in administering
treatment25
The legal duty arises as soon as medical treatment is undertaken by the health care
provider. Some commentators such as Charles Lewis stated that the duty arises simply out of
the surgeon-patient relationship irrespective of the time at which treatment begins and the
duration at which the treatment continues. The moment the doctor assumes the responsibility
towards the patient, he establishes the duty of care.
Margaret. Brazier26 noted that where a patient establishes the surgeon/patient,
relationship the doctor owes him a duty of care. As such, the duty of care does not arise until
a definite undertaking of a procedure or hospital admission procedure is completed and the
patient is allocated a bed. This idea has the advantage of certainty, the freedom of choice of
the health careprovider and a proximate relationship between the parties but it is unable to
take into account of the myriad complexities encountered in the practice of medicine.
Traditionally, the surgeon/patient relationship is fiduciary relationship. The patient
reposes trust and confidence in the doctor by submitting himself under the care of the doctor
without apprehension of life. Therefore, there is an obligation imposed on the doctor to take
good care of his or her patient. Under no circumstances should the doctor cause harm to the
patient since he is governed by the doctrines of ethics such as beneficence, non-malfeasance
and paternalism. Accordingly, as far as persons engaged in the medical profession are
concerned, every person who enters into the medical practice undertakes that he is seized of a
reasonable degree of caution and expertise to render surgical/medical opinion and treatment.
When a surgeon is consulted by a patient, such surgeon, owes the patient duty of care to with:

25
C.J. Lewis, Clinical Negligence: A Practical Guide, 5th ed, (London: Butter Worths 2001) p 139.
26
M. Brazier, Medicine Patients and the Law, 2nd ed, (London: Penguin, 1992), pp. 117-18.

17
 (a) Deciding whether or not to undertake the case;
(b) Deciding on what treatment to give; and
(c) In administration of the treatment.

Where there is a breach in any of the above duties, negligence is said to have been
established for which the patient gets a right of action for damages or on the basis of which
the patient may recover damages from his doctor.

2.8.1. Standard of Care and Breach of Duty of Care

Usually, the standard used in cases of Negligence is that of the ‘reasonable man’- that,
is that of an ordinary person placed in the same circumstances. In terms of medical
negligence however, the focus is on the standard of professional duty expected of a
comparable medical practitioner. The argument has been raised that the standard expected of
a young medical officer should not be the same standard expected of a Consultant. The
standard expected of a learner for instance is different from that required of a professional
driver.
As such, the Consultant ought to be a specialist in a chosen field and hence, the
degree of care expected of him should thus, be higher than that of a non-specialist and this
should not be overlooked in determining liability. An exception may however arise in cases
where a junior doctor is undertaking provision of specialist services; the standard that will be
required in such circumstances may be that of a specialist whilst also not overlooking the
liability of the hospital to employ the services of qualified specialists to provide specialist
care and needed supervision, when necessary. In any event, the court will be in the position to
consider the peculiar circumstances of each case.
Mistake in diagnosis will also not amount to negligence if the required standard of
care has been duly observed. In cases where there is some form of doubt on the part of the
medical practitioner as to specific diagnosis to make, such a person ought to make a referral
to a specialist, failure to do so may however amount to negligence. The standard of care
required from alternative medical practitioners appears to be lenient especially where the act
is not such that will give rise to liability for criminal negligence. In Shakoor v Situ,27 the
court held that an alternative medical practitioner could not be judged by standard of
an orthodox medical practitioner. The rationale for this is that the alternative medical
practitioner has not by his practice held out himself as professing the art of medicine in the

27
[2000] 4 All ER 181

18
orthodox sense and as such, the standard required of him is that which is prevalent in the art
of alternative medical practice.
A breach of duty is established where a medical practitioner's actions has failed to
meet an appropriate professional standard. The determination of appropriate standard is not
fixed; it may be subject to certain facts. The burden is on the claimant to show that no
reasonable doctor acting in the same circumstances would have acted in the way the
defendant acted. The fact that the culpability of a medical practitioner is largely dependent on
the expert evidence of a colleague has been largely criticised on the grounds that the
approach seems to be in favour of the medical profession over and above the patient and
hence, support from colleagues arguably makes it easy to escape liability for negligence.
While this seems like a possibility, the fact that judges have the prerogative to determine the
weight to attach to evidence adduced in a suit cannot be overlooked. In essence, where
evidence given appears tainted, the judge has a responsibility to disregard such evidence.
This was evident in the court's decision in Hucks v Cole,28 where it rightly held where
where it rightly held that ‘the court must be vigilant to see whether the reasons given for
putting a patient at risk are valid or whether they stem from a residual adherence to out of
date ideas’. In the same vein, the court in Bolitho v City and Hackney Health Authority 29 held
the view that negligence can be successfully proved even in cases where medical opinion
suggests otherwise. The court emphasized the need for the judge to consider evidence
adduced and decide whether the action unnecessarily puts patients at risk.
In establishing whether a breach has occurred, the courts can also rely on written
guidelines and rules of medical ethics to ascertain standard practices.

28
[1993] 4 MED LR 393
29
[1997] 4 All ER 771

19
 CHAPTER THREE
TRESPASS AND CRIMINAL LIABILITY OF MEDICAL
PRACTITIONERS

3.1. INTRODUCTION
This chapter shall discuss the liability of medical practitioners in trespass arising
from treatment without consent of the patient. This therefore, will require a thorough analysis
of consent and its scope for purposes of medical practice as well as some good analysis of
battery and assault. The second part of this chapter, shall be concerned with the liability of
medical practitioners in crime, arising not from deliberate intentional acts, but from gross
negligence in the performance of their duties. And the third part of the chapter, shall examine
the liability of hospitals or establishment for medical malpractice.

3.2. LIABILITY IN TRESPASS

Trespass in this area of the Law, refers to trespass to the parson, precisely battery
and assault. Trespass to the person means; direct and forcible interference with the person of
another, without consent, express or implied. At Common Law, any medical practitioner who
treats or carries out any professional activity on a patient without his consent, express or
implied, such an act can give rise to assault. Consent is therefore central to the idea of
medical practice and the doctor-patient relationship and in determining the liability of
medical practitioners in battery let us first of all discuss the concept of consent as it affects
the practice of medicine.

3.2.1. Consent to Treatment or Appropriate Authorization

Apart from malpractice, the other classical category of medical professional
liability comprises cases where surgical or other treatment is applied without the consent of
the patient. This is a violation of the basic principles, both of medical ethics and legal
science, the validity of which is generally recognized in all legal systems. The physician has
no right to examine or treat a patient without his consent. The consent that is in issue here is
not the consent as a constitutive element for the conclusion of the contract with the medical
practitioner, but consent as a condition precedent to and justification for the legality of the
physician's intervention. This principle applies in Nigeria particular and in other countries in
general with variations in its technical formulation. This rule is subject to the exception that

20
in an emergency if it is impossible or impracticable to obtain the patient's consent or the
consent of anyone authorized to assume such responsibility, in which case, the law implies
consent.30 In conformity therefore, with medical-legal ethics, the medical practitioner is under
an obligation to treat without consent, especially when the patient's condition is such as to
imperil his life. Although the physician has no right to take action by force or by misleading
the patient.
The general rule prohibiting the performance of an operation without the consent of
the patient extends to the performance of an operation different from that for which a consent
was given, as well as to operations involving risks and results not contemplated. The burden
of proving want of consent is on the plaintiff. In order to understand the nature of consent
required to satisfy the requirement of medico-legal ethics, it is necessary to consider the
scope of the consent.

(A) Scope of consent (consent-informed)

Scope of the consent-informed consent simply means that a patient who is matured
and who is able to take decisions based on sound reasoning must be fully and sufficiently
informed about the purpose, nature and the implications of the medical treament to be
administered on him, including the risks involved, so that he may chose whether to go in for
it or not. Therefore, what is needed, is not consent per say, but genuine and informed consent.
Consent is no defense unless it is given to the precise treatment or operation or at least to
acts of a substantially similar nature, with awareness of all the risks involved. The extent of
the medical practitioner's duty to inform and enlighten the patient regarding any possible
harmful effects increases proportionately as the intervention, as viewed by a prudent patient,
is less necessary nor urgent. Thus, it is possible that in some cases the physician should also
enlighten the patient regarding improbably risks, if an intervention is not necessary, or
other less dangerous ways of treatment that exist.
This applies particularly to aesthetic operations, where the physician must refuse his services
even when the patient, not only consents to, but insists on a dangerous intervention not
sufficiently justified by the patients interest.
Physicians frequently fail to make a full disclosure to patients concerning the
proposed treatment or operation. Unless this is necessary in the interest of the patient's health,
half-truth or "soft answers", may negative the patient's consent. 31 This means that, a doctor
30
R. Crawford Morris And R. Alan mortez Doctor And Patient And The law, 5th ed (C.V. Mosby, Saint Louis,
1971). P. 147.
31
See Smith v Auckland Hospital Board [1965] NZLR I91(C.A.)

21
may exercise therapeutic privilege if he thinks that revealing a particular risk would be
adverse to the patient's health. In Sidaway v Board of Governors of the Bethlem Royal
Hospital.32 The plaintiff had pain in her neck, shoulder and arms. A neuron-surgeon
examined her and recommended an operation. What the plaintiff was told is not clear, as the
surgeon had died by the time of the trial. The operation carried out with a 1% risk of damage
to the spinal cord and a 1-2% risk of damage to nerve roots. The surgeon had apparently told
the plaintiff about the risk of damage to the nerve roots but not of that to the spinal cord. The
operation was carried out without negligence by the surgeon but the plaintiff was severely
disabled as a resulted damage to her spinal cord. The House of Lords held that the surgeon
had followed approved practice of neuro-surgeons in not disclosing the risk of damage to
the spinal cord and was not negligent. The majority of the House (Lord Scarman dissenting)
was prepared to accept a modified version of Bolam test for the giving of information. The
major modification was that, where the judge thought that where disclosure of a particular
risk was obviously necessary but it was not medical practice to disclose, then following
standard practice would not avoid liability. The example given was a 10% risk of a stroke.
If medical practice was not to disclose of the risk, then a court wouldimport this decision
to the effect that, where the court considers that a particular piece of information was
necessary, failure of the medical practitioner to disclose in exercise of therapeutic privilege
will not be accepted, even if his action is in line with current medical practice. This is
especially so because the patient's right to know the risk involved in the treatment is based on
self-determination. A doctor will therefore, only have a defence of therapeutic privilege if
disclosure would have posed a serious threat of psychological detriment to the patient.
A surgeon, charged with a particular operation, is not also justified in departing
from instructions and performing a different one, except in an unanticipated emergency,
calling for an immediate decision to save life or preserve health. But in cases involving the
discovery of an unforeseen serious condition during an operation which requires departure
from the intended procedure or extension of treatment or operation the issue whether the
surgeon has authority to proceed or whether or not is decided on several criteria, especially
on whether an emergency existed or the extension was necessary.

(B) Requirement For A valid Consent:

32
[1985] AC 871

22
 For an informed consent to be validly obtained, the following requirements must
be complied with, that, the;
(1) person who gave the consent must have had the requisite capacity to do so,
(2) the consent must have been given based on knowledge of what is to be done and
the repercussions;
(3) the need to obtain fresh consent where the need arises for an operation or
treatment
entirely different in nature from that which consent was originally obtained, and
(4) there must not have been any fraud in obtaining the consent.

i) Capacity to Consent:
Capacity to consent here means, the ability in law, to freely and voluntarily consent
to a treatment or operation being carried out on a patient having disclosed the nature of the
treatment or operation, the material and psychological consequences in terms of risks and the
dangers involved. With regard to the capacity of a patient to consent, he must be or age. If he
has not attained the age of majority, then such a valid consent can only be obtained from his
parents or guardians or next- of- kin. There is no certainty as to what constitutes the age of
majority in this regard. However, it would appear that if someone has attained the age of 18
years he may give a valid consent or if he has attained such an age that it could be presumed
that his mind and brains are developed enough to have a general understanding of matters and
be able to take decisions on them. If the operation or the treatment is to be conducted on a
patient whose age is below 18, and that operation is not for his own benefit or someone
who related to him, his consent and that of his parent must be obtained and such consent must
not be given where the operation is totally of no benefit at all to the patient. Where the patient
is of age and therefore, can give valid consent, then the consent of his parent alone is not a
licence for the doctor to go ahead and start treating him or to withhold treatment on him. The
patient must consent himself, except where the patient is incapable of consent because of
unconsciousness or other defective state of mind; otherwise, the physician will be liable in
assault and/or battery or negligence; as the case may be.
Where a patient is mentally deficient his ability to give a valid consent will depend on
the degree or extent of his mental ailment, then the consent of his parent or guardian is
necessary, but if the patient is married, then the other spouse may give consent on his or her
behalf .

23
ii) Knowledge As A Requirement For A valid Consent
For consent to be valid, the patient must have been fully informed about the kind
of treatment or operation to be performed, the risk involved, the benefit of such a treatment or
operation to him and the alternative opened to that kind of treatment. Consequently a general
consent obtained from the plaintiff if not enough for this purpose. A general consent here
means, a consent given for treatment or operation without an advance knowledge of the risk
and dangers involved. This is at variance with the doctrine of informed consent and therefore,
unacceptable in medico-legal ethics. The patient in this regard, has the option of instituting an
action in the tort of battery or in negligence against the medical practitioner. If he elects to
sue in battery, then the issue of proving negligence will be immaterial because battery is
actionable per se, that is, without proof of damage. If it refers to an action in negligence, then
he must prove it, by pleading successfully, the ingredients of negligence.
Thus in case of Hatcher v Black,33 the plaintiff, a singer, suffered from a diseased
thyroid gland. She then underwent a thyroidectomy after being assured by the surgeon that
there was no risk to her voice. A nerve was no badly injured in the operation that the
plaintiff's voice was damaged. The doctor knew there was slight risk to the plaintiff's voice
but refused to inform her about it in order that she should not get worried. The doctor was
held not negligent because his action did not fall short of the standard of a reasonably skilful
surgeon. Nevertheless, the House of Lord, although maintaining the principles above has
brought in, some slight modification. Another example here is The case of Sidaway v Board
of Governors of Bethlem Royal Hospital.34
It is submitted that a reasonable man would hesitate to undertake hazardous
treatment,
and therefore, unless therapeutic reasons contra indicate , doctors should always make
simple, quiet but honest disclosure commensurate with the risks in all cases and let the
patients choose what risk or risks to run with their bodies. Where for therapeutic reasons, it is
medically and legally unethical to inform the patient of the risks or dangers involved in the
treatment or operation, a responsible relative of the patient should be informed on the
patients behalf and
obtain his or her informed consent, before embarking on any treatment or operation.
Beside, informing the patient or a close and responsible relation of the risks or hazards
involved in an operation or treatment it should always be insisted that a consent in writing in
33
(1954)Times 2nd July, 1955.
34
[1985] AC 871

24
which the patient or someone on his or her behalf acknowledges this explanation. This
procedure is in place in some hospitals in Nigeria especially, the Ahmadu Bello University
Teaching Hospital, Zaria.

iii) The Need to Obtain Fresh Consent on An Issue Entirely Different from the One Earlier
Consented To.
The question to be asked and answered here, is what happens, if in the course of
an
authorised treatment, a medical practitioner encounters a condition, constituting a threat to
the patient's life for which the patient had consented to treatment or operation?.The general
principle of English Law and probably, Nigerian Law in this regard is that, if a patient's
consent is given in respect to a treatment and in the course of the treatment a new case
requiring treatment is found, the doctor should seek for a fresh consent from the patient or
from someone on the patient's behalf, before embarking on the treatment of the new issue. In
a case, Mohr v Williams,35 a doctor was employed to perform an operation on the plaintiff's
right ear but after anaesthetizing her and examining her and finding that the condition was not
serious in the right ear as he supposed, but found a more serious condition in the left ear went
ahead to operate. He was held liable in battery despite the fact that the operation was
successful, and skilfully performed since it was not in emergency situation.
This implies that at Common Law, and as well as under Nigerian Law, the right
of a physician to extend an operation beyond that authorized by the patient, is limited to
emergencies calling for immediate action. An emergency has been defined as a medical
situation such as to render immediate treatment advisable either to save life or to safeguard
health.36 Therefore, if in the course of an authorized treatment, a doctor encounters a
condition constituting a threat to the patients life he may take such steps as may be indicated
by good medical practice to correct the condition and remove the threat. The courts are
even giving a more liberal interpretation to thework "emergency" in situations where a
medical practitioner or a surgeon followed good medical practice in extending an operation
beyond that originally authorized, even though the additional procedure could not properly
be characterized as life saving. This position of the law is good in the sense that there could
arise a situation where in the course an operation a surgeon comes across a problem which
needs to be tackled immediately and neither is the patient in a conscious state to consent to
35
[1905] 104 NW 12.
36
R. Crawford Morris And R. Alan Moritz Doctor And Patient And The law, 5th ed (C.V. Mosby, Saint Louis,
1971). P. 164.

25
the new situation nor are the relatives close by, to be contacted for their consent. Without the
above exception, the duty of the doctor may be seriously interrupted to the detriment of the
patient's health and life. That exception to the general principle of informed consent, is highly
commended.
It should noted that, the Common Law rule was developed before the discovery
of anesthesia, when the patient, if conscious could be called upon during the operation to
consent to any medically advisable extension of the operation. 37 Because of this, modern
progressive courts are departing from the rigidity of the Common Law. They express the
more enlightened view that the instances in which a surgeon may extend an operation
without the express consent of the patient are not confined to emergencies. Under this view,
the surgeon is authorized to extend the operation to any abnormal condition discovered
during the operation when this is advisable for the welfare of the patient and follows the
approved practice of surgeons generally. This position is good in the sense that it will
encourage self-reliant surgeons to whom patients may safely entrust their bodies and not men
who may be tempted to practice defensive medicine or who may be afraid to perform their
duties because of a law suit.

iv) Consent Must Not Be Tainted with Fraud.

Fraud here simply means intentional misrepresentation, that is deceit. A
medical
practitioner is under a duty to disclose to the patient the true consequences, that is, the risks
and dangers, involved, whenever surgical, therapeutic, or diagnostic procedures and
treatment, to be embarked upon, include more than the hazards that the patient might
normally expect, A physician should not misrepresent facts on a particular operation or
treatment to his patient or his guardian in order to get their consent. He should try as
much as he can, to explain to them in detail all the issue involved in the operation and their
consequences. Thus, the doctor should not, for instance, under the pretext of treating a
woman for one illness, perform an operation on her to cause abortion. Any fraud on the part
of a medical practitioner in obtaining consent, renders the informed consent null and void,
and the practitioner may be liable for an action in assault, battery or negligence.

37
Ibid p. 158

26
3.2.2. Liability of Medical Practitioners In Assault And Battery.
i) Assault
Assault according to Winfield and Jolowicz, "is an act of the defendant which
causes in the plaintiff reasonable apprehension of the infliction of battery on him by the
defendant".38 In other words, assault is the act of the defendant which produces in the
plaintiff, a reasonable expectation of immediate unlawful bodily injury by force. In popular
parlance or language, assault, covers both assault in the strict sense as described above and
also battery, which is the actual application of force. Even in the Nigerian jurisprudence, it is
increasingly common to use the term assault to cover both situations. We shall, however,
only examine assault in the strict sense.
Assault unlike battery, does not require any bodily contact, because the gist of the
tort of assault is conduct which threatens immediate force. In the majority of cases, battery
comes immediately after assault by a very short interval.
To throw an object at a person is assault, which the object is still in the air, but if
the object strikes him, there is battery. Here, the defendant commits both assault and battery.
It is, however, possible to commit battery without assault, for example, where the plaintiff
unexpectedly receives a blow from behind.
The essence of the tort of assault is threat of immediate force, hence so long as
the plaintiff reasonably expects immediate force, the defendant's ability to apply it, is
irrelevant. Thus, to point an unloaded gun at someone constitutes an assault, provided that the
person did not know the gun to be unloaded: R. v St. George.39 This position of the law is on
the, assault involves apprehension of fear of immediate bodily injury to self, which is exactly
what happens when a fire arm is pointed at the plaintiff by an aggressor.
For an action to lie in battery, there must be an intention to produce the
apprehension of bodily harm. Therefore, once it is proven that the defendant intended to
cause reasonable and immediate apprehension of battery to the plaintiff, he will be liable in
assault even if he was intercepted by a third party before he could reach the plaintiff.
Mere words do not constitute assault no matter how frightful they are, but they may
be relevant in determining whether a particular act constitutes assault or not. Secondly, those
words might even negative a threat.40
In assault, the test of apprehension of fear is objective and not subjectives The act of
the defendant must have been such that a reasonable man might fear that violence was about
38
Prof. Rogers W.V.H. Rogers, Winfield And Jolowicz, Tort, 13 ed (Sweet and Maxwell, London, 1989).
39
[1840] 173 ER 921
40
The case of Tuberville v Savage, [1669] 83 ER 684

27
to be inflicted upon him. Therefore, a man too courageous to be frightened is nonetheless
entitled to recover in assault, even if he was not afraid of the act of the defendant.
Conversely, a man of extremely low courage cannot be entitled to redress, because he had
exaggerated fears of contact. Thus, the act should be that which a man of ordinary courage
would have been afraid, to warrant an action in assault. Assault is also a crime. If a criminal
court awards compensation to the complainant, which he accepts then he may not bring a
civil action for damages.41
Consent is central to the idea of medical treatment and to the doctor patient
relationship.
There is a general principle that a person cannot complain of that which he has consented to.
A doctor, who treats without the consent of the patient, may be guilty of assault on the
patient. The patient may give express consent, for example, by signing consent form for a
surgical operation, or there may be an implied consent, for example, by holding out an
arm for an injection.42 It should be noted that besides proving to the satisfaction of the court
that the treatment or operation was carried out by the physician without consent or informed
consent of the patient, the burden is also on the patient plaintiff to prove all other
requirements of the tort of assault which we have discussed above. In fact, he must prove all
of them.

ii) Battery
Winfield and Jolowicz described battery as "the intentional and direct application of
force to another person". The act must be a direct one. Thus, it is not battery to set a broken
chair for someone to set on it or to dig a hole for him to fall inside. Secondly, the act must be
intentional. Thus, mere negligence or even recklessness resulting in a battery is not actionable
in trespass, although, it may give rise to a cause of action in negligence. Intention, however,
needs not exist at the commencement ofl the act of battery; it may be formed while the act is
still continuing. Thus, in Fagan v Commissioner of Metropolitan Police,43 the defendant
accidentally parked his car on a constable's foot. He deliberately delayed to get off when he
was told to do so. He was held to be guilty of battery because of his latter intention.
Thirdly, there must he physical conlacl hotween the plaintiff and the (defendant. It
must

41
G. Kodilinye Nigerian Law of Tort, (Spectrum Law Publishing, Ibadan, 1990), P.13.
42
J. Cooke, Law of Tort, (Pitman Publishing Co, Lodon, 1992). P. 156.
43
[1968] 3 All ER 442

28
not necessarily be bodily contact. It is enough that the defendant directly brings some
material object into contact with the plaintiff. Thus, it is battery to throw stones at the
plaintiff, to throw water on him, to spit in his face, to remove a chair on which he is about to
sit, or to inject him or operate on him, without his consent.
Life, however , will come to a standstill or halt, if all bodily contacts were to give
rise to an action in battery. Because of this, the courts in the past struggle to distinguish
battery from legally inoffensive conducts. In Cole v Turner,44 Holt C.J. described battery as,
"the least touching of another in anger". This definition of battery is too narrow because
anger is not a requirement for this tort. "The mere touching of another without consent, and in
circumstances in which he or she might take umbrage" is sufficient cause to sue, whether it
be one in anger or happiness. In fact, the basis of liability in battery is the intentional conduct
of the defendant and not his motive. It suffices to show that his act was direct and wilful.
It should be noted that not all-physical bodily contact will give rise to action in
battery.
For example, holding someone by the hand in effecting a lawful arrest or to prevent a crime is
not actionable. Similarly, Contact conforming with accepted usages of daily life. 45 Thus, to
push a person in a crowded market place or sports stadium will not constitute battery, though
it may be actionable if the defendant uses violence to force his way through in a “rude and
inordinate” manner.
Battery is actionable per se, that is to say, without proof of real damage. So, where
a person does not suffer real damage only nominal damages can be recovered.
Under English Common Law, as well as Nigerian Law, unauthorized medical
treatment usually can give rise to a cause of action in battery. It is up to the plaintiff to plead
and prove other elements that make up the tort of battery. Battery actions, protect personal
integrity and guard against treatment without consent.
Consent as has earlier been said in this chapter is central to the idea of medical
treatment and to the doctor-patient relationship. There is a general principle that a person
cannot complain of that which he has consented to. A doctor who treats without consent may
be guilty of battery on the patient. The patient may give express consent, for example, by
signing a consent form for surgical operation or there may be an implied consent, for
example, by holding out an arm for an injection. 46 The patient's consent must be real. Once
44
[1704] 90 ER 958
45
G. Kodilinye, Nigerian Law of Tort, (Spectrum Law Publishing, Ibadan, 1990), P. 14.
46
J. Cooke, Law of Tort, (Pitman Publishing Co, Lodon, 1992). P. 156.

29
the patient has been informed in broad terms of the nature of the intended procedure and
gives consent, then that consent is real.
It should be noted that, any alleged failure by the doctor to disclose risks about
the treatment, which might have enabled the patient to give an informed consent, does not
invalidate the consent. Therefore, no action can be brought in battery with regard to this

situation. An action here can only lie in negligence.

Where a patient is unconscious and therefore, incapable of giving a consent the
doctor will be entitled to give treatment on the basis of necessity. In F. v West Berkshire
Health Authority,47 the test for whether treatment is necessary; is whether it is in the best
interest of the patient. What is in the best interest of the patient will be judged by the
standards of a responsible body of medical opinion. The decision would appear to give the
medical profession considerable latitude in deciding what is necessary. Nevertheless, even in
an emergency situation, if the patient is conscious and capable of giving his consent, then the
doctor must observe his wishes or be liable in battery. but if the patient is unconscious and
the doctor is unaware of the objection, provided the best interest of the patient test is satisfied,
no liability arises. Consequently, if the doctor is aware of the objection, then it would appeal
that the doctor may be liable if he goes ahead with the treatment, it or operation.
It is submitted that when patients allege battery they almost invariable prefer civil
to criminal proceedings as their desire is to make all possible profit from what has been, in
the vast majority of cases, nothing more than an made in all good faith, but occasionally the
medical practitioner finds himself. in a court room. It is, therefore, recommended that
Nigerian Law should adopt the principle in the case of F. v West Berkshire Health Authority,
this will give the medical profession considerable latitude in deciding what is necessary and
therefore reduce malpractice suits.

3.3. CRIMINAL LIABILITY (negligence) OF MEDICAL PRACTITIONERS

Apart from civil liabilities, which have been our focus, so far , a medical
practitioners' action may also result in commission of a crime giving rise to criminal liability.
Liability may arise for instance for criminal assault or for causing grievous bodily harm.
Hence, where in the course of treatment, and due to some form of negligence on the part of
the medical practitioner, a patient suffers some gross or extreme harm or death, showing
disregard for life and safety, liability will arise under criminal negligence. This view was

47
[1989] 2 All ER 545.

30
given expression by the Privy Council in the Nigerian case of R. v Akerele48 where the court
held that the degree of negligence required in criminal cases must go beyond that for civil
liability and it must be shown that there has been ‘such disregard for life and safety of others’
to amount to manslaughter. This is in tandem with the rule of evidence relating to standard of
‘proof beyond reasonable doubt’ for criminal cases.
The view has been expressed that liability for criminal negligence is limited
to
prosecution for manslaughter. In Nigeria however, it appears based on the provision of
Section 343 of the Nigerian Criminal code, that liability will arise in criminal negligence for
acts other than manslaughter. Section 343 is to the effect that any person who gives medicine
or medical or surgical treatment in a rash or negligent manner as to endanger life or likely to
cause harm to a person shall be guilty of a misdemeanor. As such, under Nigerian criminal
law system, liability will arise even where life has not been lost but endangered, in the course
of treatment. Also, Section 303 of the Nigerian Criminal Code requires that persons who
undertake to administer surgical reasonable skill and use reasonable care in acting except in
cases of necessity. This can on the face of it be interpreted to accommodate or recognize
persons other than qualified medical practitioners for instance, quacks, to carry out surgical
and medical treatment provided they use reasonable skill and care. A second look at the
provision will however reveal that the requirement for possession of reasonable skill and use
of reasonable care is to be read conjunctively and not in the alternative. Thus, the view has
been expressed by some that the test for judging responsibility is not a person's qualification
or skill but a person's conduct considered negligent. Thus, the decision reached by the court
in the case of R. v Lawanta49 where the defendant was acquitted on a charge of manslaughter
because the court found that although unqualified, he exhibited the proper degree of skill by
sterilizing equipment used is considered questionable, in view of the express provision of
Section 303. Sterilizing of equipment does not suffice to establish requisite skill in handling
treatment involving human life. The fact that the accused was not qualified immediately
suggests that he could not have possessed the reasonable skill required under section 303.
It must be noted however that skills do not only involve possession of
qualifications; it may be a product of years of experience which ought not to be assumed or
dispensed with or substituted with use of reasonable care. A locally trained mid-wife who has
taken multiple deliveries may be able to exhibit reasonable skill in taking delivery.

48
[1941] 8 WACA 56
49
[1961] WNLR 133.

31
 However, it is our submission that the issue of possession of reasonable skill
especially for informally trained persons should be one to be proved sufficiently and
undoubtedly by careful consideration of the facts and circumstances of each case, before a
decision is reached.

3.4. TORTUOUS LIABILITY AND VICARIOUS LIABILITY

Tortious liability can arise in case of negligence of a surgeon treating a patient.
This liability is meant to serve two main purposes. Firstly, it provides compensation to those
injured as a result of negligence, thereby acting as a source of insurance. Secondly, it serves
as a deterrence that will prevent future occurrence of the negligence. The tortious liability is
usually a civil action brought by the patient or his heirs. Tortious liability can either be
primary or vicarious.
A vicarious liability should not be confused with primary liability of hospitals.
Apart from vicarious liability, a hospital may commit a breach of duty of care, which it owes
to another, i.e. a hospital may be in breach of its own duty to another. An example of this is
where a hospital is at fault for selecting an unskilled person as its staff who conducts himself
in a wrongful manner, or allowing such a person to continue in employment; or where it
provides defective equipment for use by the health care team under its employment.50
When we refer to vicarious liability, it is a liability where a master incurs damages to
the third party because of a wrong committed by his servant in his employment. This does not
matter whether the master didn’t commit the offence himself. But for a liability of a master to
occur, there must be a relationship of master/servant which is distinct from employer and
independent contractor. The management of the hospital is always vicariously liable for the
offence its staff commits. This is because the healthcare team is the servant of the hospital
who employed them. Examples of these are Surgeons, Radiographers, Pharmacists, Nurses
and so on. These are servants of the hospital authority being referred to as being vicariously
liable. Vicarious liability of the master arises on the primary liability of the servant. The
servant is the principal tort feasor while the master is the accessory. Thus, a plaintiff could
sue both the health care provider and the hospital jointly. He may also sue either of them. The
usual thing is to join the employer as a defendant. At times, the plaintiff may not be able to
specifically identify which of the several servants of the master was negligent. For example, a
patient who has been injured during an operation in a hospital may not be able to identify
which one or more of the team of surgeons, anesthetists, nurses, and so on, are involved in
50
I. P. Enemo, The Law of Tort (Enugu: Chenglo Ltd, 2007) p. 306.

32
the operation, was careless. It was held in Cassidy v Ministry of Health51 that, in such a
situation, the hospital authority will be vicariously liable, unless it can show that there was no
negligent treatment by any of its servants. It is usually better for an injured plaintiff to join
the hospital (master) as a defendant because; it is richer than any of its servants and will be in
a better position to pay than the servant (provider).

3.5. LIABILITY OF HOSPITAL MANAGEMENT

Apart from the liability of medical practitioners in their individual capacities, a
hospital may also be liable for negligence. This is especially because hospitals are no longer
being regarded solely as ‘venues for treatment’ but as ‘providers of treatment’. This
development has given rise to the liability of hospitals either directly or vicariously for acts of
negligence. Direct liability for negligence will arise where a hospital has failed to provide an
environment and facilities that will facilitate safe treatment of patients. For example, this will
arise where equipment, which are expected to be available are not available or are not
functional leading to harm, injury or death of patients. Examples include: a non-functional
ambulance, unhygienic conditions, non-maintenance of medical records, and transmission of
infections, amongst others. Vicarious liability on the other hand will arise where the hospital
is being held liable for acts, omissions and failure of its staff, in the discharge of their
responsibilities in the hospital. This view was well expounded by Lord Denning in the 1951
case of Cassidy v Minister of Health.52
A senior medical practitioner may also be held vicariously liable for the actions
or omissions of a junior or any member of the medical team that he leads or who is
under his supervision and control.

51
[1951] 2 KB 343.
52
Ibid

33
 CHAPTER FOUR

DEFENCES AND REMEDIES AVAILABLE TO MEDICAL

PRACTITIONERS

4.1. INTRODUCTION
This chapter shall discuss defences and remedies available to medical practitioners. It
shall also discuss causation.

4.2. DEFENCES
In medical professional liability, cases or suits, the burden of proving legal liability of
the a medical practitioner rests upon the patient. This means that the evidence presented by
the patient must be more convincing than that presented by the physician. The Physician is
presumed to be free from liability until the contrary is proved. The patient must sustain the
burden of proof with respect to the essential allegations of his claims against the medical
practitioner. If he charges the practitioner with professional negligence, for example he has
the burden of establishing the standard of care applicable to the physician, and of proving the
practitioner's failure to conform to that standard of care. Secondly, if the patient alleges
technical assault and battery by alleging that the doctor operated on him or treated him
without his consent, then he has to prove that he did not consent and the circumstance did not
call for emergency treatment. Even where the patient-plaintiff has discharged himself of the
necessary burden of proof, the medical practitioner may still not be liable in medical mishap
if it can be shown and successfully pleaded that the medical practitioner has a defence to his
claim It is some of these defences that we are going to consider under this sub-heading.
The most important of some of these defences are, Contributory Negligence,
Voluntary assumption of risk, statute of limitation and special defences.

4.2.1. Contributory Negligence

The term contributory negligence has been defined by Kodilinye as, "the
negligence of the plaintiff himself, which combines with the defendants negligence in
bringing about the injury to the plaintiff''.53 Judicially, Coker, J.S.C. defined contributory
negligence as "Contributory negligence means that the party charged is primarily liable but
that the party charging him, has contributed by his own negligence to what has eventually

53
G. Kodilinge Nigerian Law of Tort, (Spectrum Law Publishing, Ibadan, 1990), P.83.

34
happened". The epitome of the two definitions is that, for an act to qualify as contributory
negligence, the defendant must have initiated and actually caused the injury complained of
and the plaintiff must have aggravated his act, which occasioned the injury. Therefore, for the
defence of contributory negligence to come into play, the negligence of the medical
practitioner must be concurrent with that of the patient. Consequently, negligence on the part
of a patient occurring after the negligent treatment by a physician is not strictly speaking
contributory negligence, since it is not concurrent. Another example of contributory
negligence is where a patient fails to follow instruction to return for further treatment.
At Common law, contributory negligence was a total or complete defence, that is, it
afforded the defendant complete freedom from liability. So if the medical practitioner was
negligent and the patient himself contributed to the negligence causing his own injury, he was
entitled to nothing by way of damages. According to Lord Blackburn, "The rule of law is that
there is blame causing the accident on both sides, however small that blame may be on the
one side, the loss lies where it falls". The case, which is regarded as the foundation of the
doctrine of contributory negligence, is Butterfield v Forrester.54 In that case, the defendant
wrongfully obstructed a street in Derby by placing a pool across it, and the plaintiff rode
along the street, 'at eight O'clock in the evening of August, when they were just beginning to
light candles' but even though there was still enough light to notice the obstruction, the
plaintiff all the same collided with the pole as a result of which he was thrown off from his
horse and injured. It was held that the plaintiff had no cause of action, because he could not-
withstanding the defendant's negligence, have avoided the accident, by the use of due care
In order to further protect the plaintiff, who is contributory negligent the
Nigerian passed the Civil Liabilities (Miscellaneous Provisions) Act, 1961. This Act, enables
a plaintiff who is in contributory negligence to recover damages, although his degree of
contribution will diminish the amount of damages due to him.
The Present position of the Law, as could be seen from the Law Reform
(Miscellaneous Provisions) Act, 1961 is that where a patient is in contributory negligence, the
amount due to him by way of damage will be reduced by the percentage of his own
contribution to the injury. Thus, failure of a patient to return as instructed for further
treatment has afforded a defence in a number of cases. If the patient is aware of the injury he
has sustained and goes to another physician, his failure to return as instructed does not afford
a defence. Also, in the absence of instructions, the failure of a patient to return for further

54
[1809] 103 ER 926.

35
treatment is not contributory negligence. At least one court has held that, with respect to
following instructions, a sick man should not be held as strictly accountable as a healthy man.
It should be noted that the defence of contributory negligence is not frequently
applied in medical professional liability cases. The doctrine of superior knowledge on the part
of the doctrine makes such a defence dangerous and difficult. There are some instances,
however, in which contributory negligence of the patient and the negligence of the
practitioner as the sole proximate cause of the injury have been raised as a defence.55

4.2.2. Statute of Limitation.

It is the policy of the law in Nigeria to require a person who is injured by another to
seek legal redress as soon as possible. A delay in doing so may result in an injustice since the
passage of time makes proof of the factual events more difficult. For all states in Nigeria have
established time limits for filing suit tort. In Nigeria, there is no specific statute applicable to
medical professional liability suits. Consequently, a suit charging a medical practitioner with
professional negligence is usually regulated by the general statutes of limitations applicable
to torts.
Limitation of action is defined in Black's Law Dictionary, 56 as a certain time allowed
by statute for bringing litigation. This means that once the time allowed by Law for the
purpose of instituting an action in respect of a particular act expires, the person intending to
institute that action is debarred by law from doing so and where such an action is instituted it
will be declared as statute-barred and consequently be dismissed by the court.
With regard to torts, this will mean the period within which a party who sustains
injury
or damage as a result of the act of another is entitled to maintain an action in court to recover
damages. The laws governing this in Nigeria are the Limitation of Action Act. 57 The Public
Officers Protected Act,58 and the various States Edicts on Limitations of Actions.59
Under the Kaduna State Limitation of Actions Edict, the limitation period for
actions to recover damages for personal injuries is five years and where the person died
before the affliction of the period stated above, the period allowed with regard to the cause of
action surviving for the benefit of his estate is five years 60 again, where the accident results in
55
R. Crawford Morris And R. Alan Moritz. Doctor And Patient And The Law, (C.V. Mosby Co. Saint Louis,
1971), P.410.
56
Henry Campbell Black, Black Law Dictionary, Page 835.
57
Cap 70, Laws of Lagos State, 1973
58
Cap. 379, Laws of the Federation (LFN) 1990.
59
See, for example, Kaduna State Limitation of Actions Edict, 1990.
60
Ibid. Section 20. The same Limit applies to the State, Pulic Authorities And Officers

36
an instant death, the time allowed the dependants or the personal representatives of the
deceased to institute an action for the benefit of estate is five years. Any attempt to institute
an action outside the limitation period will fail. Thus, in the case of Letang v Cooper,61 where
the plaintiff instituted an action based on trespass to the person, when the defendant's car
accidentally ran over her legs when she was sunbathing on the grass. It was held that her
proper cause of action was in negligence and not trespass to the person. And that since the
case was brought outside the 3 years period allowed under the Limitation of Period Act, 62 for
bringing an action in trespass, it was statute barred.
An important Nigerian case is Adigun v Ayinde.63 The plaintiff sued the
defendants
jointly and severally for N700,000 being special and general damages for the injury sustained
by him as a result of the negligent driving of the first defendant. The injury was sustained on
the 10th February 1978 while the suit commenced on the 17th of August 1981.
The defendants raised an objection to the suit on the grounds that the suit being
founded on tort, cannot be brought against the third defendant which is an organ of the
Federal Government because of the doctrine of state immunity from tortuous liability; that
the second tortuous liability; that the second defendant, Permanent Secretary, Federal
Ministry of Agriculture and Natural Resources is not a juristic person and as such,
cannot be sued; and thirdly that the action being against Public Officers (1st and Second
defendants), is statute barred as it was not commenced within 3 months from the date the
cause of action arose in compliance with section 2 (a) of the Public Officers Protection Laws
Cap. IIl, Laws of Niger State. Counsel to the plaintiff on the other hand contended that the
action is not statute barred in that negligence occurred on the 10th of February 1978, but the
injury suffered by the plaintiff was continuous.
It was held on the issue of limitation of action that continuance of injury or
damage
means continuance of the Legal injury and not merely the injurious effects of the Legal
injury. Therefore, the plaintiff should have commenced action 3 months after the date of the
accident and not after the date of his final discharge from the hospital. This position of the
Law applies to medical professional liability in its entirety.
The next question is, when does the period of limitation begin to run? According to
the Kaduna State Limitation of Action Edict, it would appear that time begins to run for the
61
[1964] 3 WLR 573.
62
Of 1939, Section 2(1).
63
[1993] 8 NWLR (pt. 313) 516

37
purpose of determining whether or not an action is within time, on the particular day the
cause of action accrued. However, there are certain cases in which this can be extended. One
of such cases is where the injuries sustained by the victim of the defendant's negligence leads
to his death. Here, the position of the law is that the computation of time shall begin from
either the date on which the deceased died or on the date in which the personal
representatives of the deceased became aware.
This means if the person for whose benefit the action is instituted is not aware of
the death of the deceased or the reason for his death until after one year of the occurrence of
the accident, then the time begins to run after that one year and not the date on which the
accident actually took place.
One other thing, which the Kaduna State Limitation of Action Edict provide for, is
where the accrual of the Cause of Action is concealed by the defendant so that the time
elapsed before the person entitled to sue becomes aware. The position under the Edict is that,
the period of limitation will not begin to run until the plaintiff has discovered the fraud or
could with reasonable diligence had discovered it. 64 Finally, once time has started to run,
there will be no suspending it for any reason.
In conclusion, it would be said that, any action against a medical practitioner outside
the limitation period, unless it falls under the above exceptions, will be time barred.

4.2.3. Assumption of Risk (Volenti Non Fit Injuria).

Voluntary assumption of risk (Volenti Non Fit Injuria) as a defence, means that
anyone who agrees, either expressly, or impliedly to the risk of injury, cannot recover
damages for any of the risks he had agreed to run. 65 The position of the law here is on the
philosophy of individualism, that no wrong is done to one who consents. Equally, in
professional medical liability, it is a cardinal legal principle that one who knowingly enters
upon a course of conduct involving certain risks cannot recover damages for injuries resulting
from the conduct. For the rule to apply, however, it must be found that the person injured
actually know or that the risks were so obvious that the patient should have known of the
risks involved. As a matter of law, for example, one who engages in an athletic contests
assumes the risk of injuries that ordinarily occur in such contests.
A patient, who knowingly, entrusts himself to the care of someone lacking in
medical qualifications, assumes the risks arising from such lack of qualifications.

64
See Section 33 of Kaduna State Limitation of Action Edict 1990
65
Charlesworth, Negligence, 6th ed, (Sweet and Maxwell, London 19), P. 755

38
 It is a general rule that a medical practitioner cannot avoid liability for negligence
by having a patient sign in advance a release or a contract containing an exculpatory clause.
The obligation of a physician to possess and exercise reasonable care in treating a patient is
imposed by law. The medical practitioner who undertakes the treatment of a patient cannot
therefore avoid that obligation by contract. However, a patient can relieve a medical
practitioner of liability for the inherent risks of dangerous or experimental procedures if he
gives his consent, having full knowledge of the risks.
It should be noted that there is striking absence of Nigerian cases on assumption of
risk in medical suits. This is so because it is the general practice of medical practitioners to
inform patients adequately, and obtain their consent in advance, their written authorization
for any necessary treatment or operation. Secondly, because of the high illiteracy level,
especially in the Northern part of Nigeria, patients are ignorant of their rights in this respect.
And thirdly, religious belief and poverty also militate against the patient's desire to bring
actions against medical practitioners for medical mishaps. The population should, therefore,
through the mass media, the churches and mosques be educated that it is a religious, social,
and legal right to sue for medical mishaps, The government should also allocate funds to the
Legal Aid Council, to assist victims of medical mishaps who, because of poverty cannot
initiate legal proceedings to vindicate their rights against negligent medical practitioners.

4.2.4. Special Defences

Besides the more common defences discussed above, there are some less usual
defences that may be available in a suit against a medical practitioner in appropriate
circumstances. These defences may be available in many kinds of suits and are not used too
frequently in professional liability suits. Nevertheless, it is important to discuss them and
know about them, in case the need arises for their application.

i) Release:
A release is an agreement in which some interest is surrendered to the person against
whom it could be enforced. For example, Makolo, a patient, agrees with Kharmal, a
gynecologist, to treat her without fee and that if any medical mishap arises from Kharmal, she
will not sue him. If valid, a release is a complete defence to a suit to enforce the surrendered
claim.
For a release to be valid, the person giving it must be competent. It must not be
obtained by fraud, fraudulent misrepresentation, duress, or undue influence. An innocent

39
mistake will not ordinarily affect the validity of a release, but a mutual mistake is frequently
recognized as grounds for the avoidance of a release. Since a release is a contract, it must be
supported by valuable consideration unless it is intended as a gift. A release of liability for
future negligence is contrary to public policy and is null and void.66
A physician's relationship with his patient is one of confidence. He has an obligation
to disclose to the patient, any injury suffered or any negligent conduct on his part. His
failure to do so, may constitute fraudulent misrepresentation which would invalidate a
release. Thus, a release obtained by a medical practitioner from a patient whose heel was
burnt by a hot water bottle while he was under a general anesthetic, was set aside where the
patient testified that he signed the release because of misrepresentation by the physician.
In conclusion, it may be said that a valid release to a treatment or operation by a
patient, is a complete defence to any suit subsequently brought by him on that same subject
matter against a medical practitioner.

ii) Res Judicata

Res judicata means that once a legal claim has been finally decided on the
merits, it cannot be relitigated between the same parties. This is known as the rule of res
judicata. A decision on the merit is reached when it is a declaration of law with respect to the
rights and duties of the parties, based upon the state of facts disclosed by the pleadings and
the evidence. A judgment against one of a number of joint tort-feasors, if satisfied, bars a
subsequent suit against the other joint tort-feasors.67
This defence is available in suits against medical practitioners for professional
liability in negligence or in torts generally. A judgment in favour of a medical practitioner in
a professional negligence suit is a bar to a separate suit for breach of warranty arising out of
the same transaction, It is sometimes applied to bar a suit for professional negligence where
the physician has recovered a judgment for compensation for his services, on the theory that
the suit for compensation resolves the issue of physician's care and skill, even though the
issue was not directly litigated.
iii) Compensation Awards
Workmen compensation laws, provide for compensation to employees for
injuries suffered in the course of employment, including necessary medical services. An

66
R. Crawford Morris And R. Alan Moritz. Doctor And Patient And The Law, (C.V. Mosby Co. Saint Louis,
1971), P. 417.
67
R. Crawford Morris And R. Alan Moritz. Doctor And Patient And The Law, (C.V. Mosby Co. Saint Louis,
1971), P. 417.

40
employee who has been awarded compensation for his injuries as provided for under the
statute, is barred from suing a medical practitioner who treated him for injuries resulting from
the alleged negligence of the doctor. This is in line with the proposition in the Workmen's
Compensation Act,68 which provides in section 24 that:
Where injury in respect of which compensation is payable under this Act was
caused in circumstances creating a legal liability in some person other than
the employer to pay damages in respect thereof - (a) the Workman may take
proceedings both against that person to recover damages and against
any person liable to pay compensation under this Act for such compensation,
but shall not be entitled to recover both damages and compensation...

According to this provision, if the injury which the patient or plaintiff suffered,
entitled, him to compensation under this Act, and is also capable of giving rise to a cause of
action for damages against a third part, that is, someone other than the employee (medical
Practitioner), if the patient or workman has been compensated according to the Act, will be
barred from suing in tort for damages and vice versa. This is defence in medical professional
liability.

4.3. REMEDIES FOR MEDICAL PRACTITIONERS LIABILITY

When it becomes established in a medical professional liability suit that the defendant is
liable, one thing becomes obvious. That is, what remedy to the aggrieved party entitled to?
The objective of a medical liability suit is always to claim damages or compensation for the
injury sustained. And in order to arrive at the amount and the nature of damages that the
patient plaintiff is entitled to it is necessary to know whether the damages are for personal
injuries or for death.

4.3.1. Damages
This constitutes the last very important ingredient of negligence which must
be established before a plaintiff can succeed in a claim in negligence. No matter how
negligent a surgeon might be, a patient cannot successfully institute an action against him/her
if he did not suffer any damage.

68
Cap. 470, Law of the Federation of Nigeria (LFN) 1990.

41
 Damages can be defined as the pecuniary or monetary compensation that may
be recovered in a lawsuit for the breach of some duty or the violation of some right
recognized by the law. Or simply a loss or injury that can be measured and compensated
for in terms of money. Damages may be recovered either for breach of a contractual
obligation or for a neglect of duty or an invasion, a right recognized by the law. In a suit
against a medical practitioner for professional liability the general rules with respect to
damages apply. These rules vary somewhat depending on the type of suit involved-breach of
contract, negligence, assault, battery etc. A good example of such loss in damages is given by
Bernard Knight as follows:.
1) Loss of earnings whether due to enforced absence from work or prevention or
impairment of his ability to carry on his previous occupation, so that he is forced to take
employment at a lower level of salary.
2) Expenses accrued because of the damage caused by the negligence, which may be
hospital bills, nursing bills, special treatment, special food etc.
3) Reduction in expectation of life apart from the financial aspect.
4) Reduced enjoyment of life from any physical or mental consequences of the negligent
act
e.g. loss of a limb, faculty or sense which would reduce mobility or appreciation of his
surroundings.
5) In the case of women, some physical disability or disfigurement which might reduce
the chances of marriage or inability to have children - these are actionable.
6) Pain and suffering whether physical or mental may also be taken into account such as
mental or nervous shock.
7) Death may be actionable for the benefit of dependent relatives. The main criteria
applied to measure such damages is the loss of potential future earning power, off –
setting by life insurance, pension, all being taken into account.

All damages awarded for items such as loss of faculty, pain and suffering,
loss of expectations of life among others are termed general damages while damages
awarded for expenses such as medical and nursing attention are termed special damages.
While general damages depend on the assessment of all the factors obtained in the particular
case by the judge, special damages on the other hand are liquidated sums capable of being
completed exactly.
4.4. ISSUES IN CAUSATION: The But For Test
42
 The proof – that the breach caused a particular damage is absolute and the
burden of doing it lies with the plaintiff. In the case of Ojo v Gharoro and UBTH,69 where the
appellant had a surgical operation for the removal of a growth in her fallopian tube, because
she had been unable to get pregnant. It was ascertained medically that the removal of the
growth might make it possible for her to get pregnant. The surgical procedure was done by
the 1st respondent and assisted by the nurse and the 3rd respondent. The appellant’s alleged
that in the course of the operation, the surgeon left a broken needle in her womb, resulting in
very severe pain for which she claimed damages in this action. Tobi, J.S.C. dismissed the
appeal and made important pronouncements saying that the only witness who gave evidence
for the appellant is the appellant herself. She did not call any expert witness for her evidence
and so her evidence struggled for the place with the expert evidence of 3 witnesses for the
respondents.
The fact that the patient’s injury was caused by the medical practitioner is
crucial to establish negligence. Not only should the injury be caused by the medical
practitioner, the injury must be a direct and not a remote consequence of the medical
practitioner's action. Hence, Lord Denning in MIV & Ors v London Borough of Newham 70
rightly noted that causation is a question of fact and not law. This is especially relevant in
circumstances where the patient would have died or inevitably sustained injury irrespective of
the medical practitioner’s negligence. Causation cannot be based on assumptions especially
in cases of medical negligence and hence, must be proved or at the minimum, show that the
patient’s injury was caused substantially by the medical practitioner’s actions.
The issue of causation will also be required to be settled in cases where there
are alternative possible causes of death or injury. Proof that the medical practitioner's
negligence caused the injury or death cannot be dispensed with in such cases.
The medical practitioner's ability to reasonably foresee damage or injury is also
crucial in proving causation and establishing negligence.
Causation often raises difficult legal problems but the courts adopt a broad
common sense approach in resolving them. The case of Barnett v Chelsea and Kensington
Hospital Management Committee71 is illustrative here. This is a case where a plaintiff’s
husband after drinking tea experienced vomiting for three hours, together with two other men
who drank the tea with him. He was rushed to the hospital that night to the casualty
department of the defendant hospital, where a nurse contacted the house officer on duty by
69
[2006] 10 NWLR 987
70
[2018] EWHC 3298
71
[1968] 2 WLR 422

43
telephone, telling him of the symptoms. The doctor himself was as well, tired, and sent a
message back through the nurse, that they should go home and contact their own doctors in
the morning. But some hours later, the plaintiff’s husband died of arsenic poisoning and the
coroner’s verdict was one of murder by a person(s) unknown. In an action for negligence, the
doctor was found guilty of negligence for a breach of duty of care, but this breach could not
be said to be the cause of the death, because even if the doctor had seen him, he would still
have been dead. It could therefore not be said that but–for– the doctors negligence, the
deceased would have lived.

4.5. REMOTENESS OF DAMAGE

Although, the act of the defendant may have caused the harm complained of,
nevertheless the law does not hold a person responsible for all the direct consequences of that
person’s act. The person is liable only if such consequences as a reasonable man would
foresee as the natural and probable consequences which are not foreseeable, are regarded by
law as too remote. Damages are entirely compensatory and in no sense punitive and still less
vindictive. But if damages are capable of being assessed, however difficult it may be, the
court will not shirk from attempting this.
This is because unlike some general damages that follow an ordinary breach
of contractual or civil right which the law presumes are more often than not incapable of
analytical verification. Damages under the Fatal Accidents Law are based on data which a
combination of the earning capacity of the deceased and the loss of the individual dependant,
suffers from the abrupt termination of the earning capacity of the breadwinner proportional to
the benefit he or she derived from the deceased income. In one, the assessment is purely
arbitrary, in the other hand it is based on data which are ascertainable from defined
sources that are products of an established relationship which has been involuntarily
severed.
Another Nigerian case where the issues of causation and remoteness of damages arose
is the case of Mange v Durie,72 where the plaintiff, riding his bicycle along Jos Balewa Road
when he was knocked down and suffered severe injury to his leg as a result of the negligent
driver of a lorry. He was immediately taken to the hospital by the defendant – but later before
his treatment was completed and against medical advice, he discharged himself and did not
return to the hospital until after two days. During the two days the leg became infected and
was scheduled to be amputated. The plaintiffs claim for damages for the loss of his leg was
72
[1970] NNLR page 62

44
rejected by Bates S.P.J, (as he then was) on the grounds that compensation will only be
awarded in respect of a class of damage which the defendant could reasonably be expected to
have foreseen. Compensation will not generally be awarded in respect of injury sustained as a
result of the act or default of the injured party or to the extent to which the injured party has
failed to take reasonable steps to mitigate the injury. In the present case, it was not reasonably
foreseeable that the plaintiff would, contrary to medical advice, leave the hospital where the
defendant had taken him, and at least two days without proper medical care or attention,
which resulted in an infection that necessitated the amputation of his leg. Apart from the
question of unforeseeability the plaintiff, by not taking reasonable steps to mitigate the
damage, brought upon himself – the amputation of his leg by his own ill-advised action.

4.6. ASSESSMENT OF DAMAGES

Although, the plaintiff may succeed in proving negligence and that he has suffered
injury or harm, he must show that the injury or harm, resulted from the wrongful act or
omission complained of and failure to establish this connection between the negligence and
the alleged damage will not entitle him to judgment.
Damages for a loss of a digit or a limb, for loss of an eye or sight or smell, or for a
scar or disfigurement or from shortened expectation of life cannot be measured according to
any fixed rules. The age, the circumstances, prospects and so on, of the plaintiff have to be
considered and damages awarded on the evidence. The award would be disturbed unless
matters have been taken into consideration which were irrelevant or a wrong measure of
damages was applied. Unless the damages are so excessive or so small as to make it an
opinion of the court of Appeal, otherwise an entire erroneous estimate of the damages of the
plaintiff’s entitlement fails. The case of Flint v Lovell73 is instructive here. The judge may
proceed upon some wrong principle of law, as in the case of Gold v Essex County Council,74
where the Judge awarded an infant lower damages than he would have awarded to an adult,
on grounds that the amount, through accumulation of interest, would have substantially
increased by the time the child came of age and was entitled to receive it.
Another good illustration on how the Nigerian judges often assess general
damages in personal injuries, is in the case of Anumba v Shohet,75 where Taylor C.J. said that
turning now to the general damages, the settled principle to be applied is where injury is to be
compensated by damages, the court should as nearly as possible get at the sum of money
73
[1935] I KB 354 CA
74
[1942] 2 KB 293
75
[1965] 2 All NLR at page 186

45
which would put the party (who has sustained or suffered injury) for which he is now to get
compensation in the case at hand, he thinks the plaintiff here, must be from a compensation to
his injury, and such as will be fair assessment in the opinion of the reasonable man. He said
he ought to take into account the pain that the plaintiff suffered from the injury to his leg and
the handicap which he now suffers in calculating the damages which, as far as money can do
it, he should be paid for the loss he has suffered as the natural result of the wrong which has
been done to him. In this respect, he said he has to consider the fact that the plaintiff suffered
a fracture of the left femur, as a result of which he was hospitalized for nearly three months,
during which period he suffered pain. He also said he has taken into consideration the fact
that the plaintiff still suffers pain and that it is not advisable to drive his own car. The burden
now rests with the plaintiff to procure the services of a professional driver. The plaintiff told
him that he swims, plays tennis and football. He said he could no longer do these things
because of the injury and shortening. He has referred him to several decided cases in which
varying sums of money have been awarded in cases of injury to different classes of claimants.
Taylor C. J., (as he then was) upon proving the existence of legal damages, the
court becomes saddled with the responsibility of computing the quantum of damages which
the plaintiff is ordinarily entitled to. In this vein, he said that there are no hard and fast rules
which determine the amount of damages awarded a plaintiff as compensation for medical
negligence, this depends on the facts and circumstances of each case. However, there are
some factors which should be taken into consideration and these include the nature of the
injury, effect of the injury on the injured (that is as to whether it causes permanent disability
or otherwise), the age of the injured etc. It would suffice to say that special and general
damages may be awarded, recourse being made, of course, to the precepts dictated by the
peculiarity of each case and circumstance.

46
 CHAPTER FIVE

CONCLUSION
5.1. CONCLUSION
Presently, the public are now being informed on matters of medical moral values
and medical litigation. Indeed, medical practitioners are being hailed as rescuers and saviours
while at the same time condemned as pitiless. Therefore, as litigations against medical
practitioners for negligence are rapidly increasing, medical practitioners must learn to be
cautious in the performance of their duties. In this regard, this thesis has been able to
highlight the main responsibility of a medical practitioner which is to take good care and to
find suitable treatment for the complaint of a patient in his care. This duty of a medical
practitioner to exercise reasonable care has since been acknowledged from time immemorial.
Therefore, once a medical practitioner agrees to cure a patient, then a contractual relationship
is formed.
Consequently, any deprivation of duty of care, negligence arises and the
medical practitioners becomes liable to compensate the patient, if the patient is not dead or to
his/her heirs. As discussed in this thesis, generally, medical competence rests on three major
pillars that together established the foundation of independence of medical practitioners.
These are expertise, ethics and services provided. Expertise is a combination of knowledge
and skills acquired overtime; ethical conduct flows from an exclusive combination of morals
and values while service symbolises a professional obligation to put patients first. Moreover,
independence gives medical practitioners self-confidence which, inspiring them to do well
with a solid sense of moral duty, to make an essential contribution to humanity.
Nonetheless, this thesis has shown that behaviours of medical practitioners have to
be controlled because there is a peculiar affiliation between medical practitioners and
patients, who wholly depend on the expertise and skills of the medical practitioner. This
means that patients have trust in their clinicians and permit them to encroach into their
private lives and gains access to their private information.
As shown in this thesis, the action of a medical practitioner can affect his
patient in numerous means: from merely advising the patient on his life-style to doing harm
in surgery for the treatment of the ailment. Thus, it is essential to ascertain medical
practitioners who are not fit to practise as they may pose threat to patients for some notable
reasons. Measures must be taken to stop them from working pending the time they would be

47
cleared to do so. In other words, this thesis concluded that merely assuming that all medical
practitioners are qualified to treat patients would be dangerous and unethical.
Therefore, it is the duty of the profession to protect the patient against the
incidences of medical carelessness in the interest of the populace. This is the more reason
why the profession itself is required to agree to proper regulatory measures when persons do
not act proficiently or morally. In Nigeria, while considering medical negligence, the Medical
Practitioners Disciplinary Committee, is the regulatory body at work. The thesis has
examined the set up and procedures before the Committee and on that basis it is concluded
that the Committee has been doing well in terms of disciplining erring medical practitioners.
The Nigeria medical council should lay down standards of fitness to practice and
also to exercise discipline over the medical practitioners whose professional negligence is an
embarrassment to both the council and the entire professional bodies as was done in the case
of DR. (Mrs.) F.C.L. Olaye vs. Chairman, MDPDT and ors76
It is discovered that the Medical and Dental Disciplinary Committee is only
concerned with serious matters of professional misconduct and does not provide any
protection for the public. The courts also, in cases of permanent harm or disability applies the
panel sanction on the criminal aspect of that acts as a punishment and has a deterrent effect
also, but the victim is left without any compensation what so ever. The penalties or fines only
go to the state and if the victim wants, can now apply for a civil action. This is not right for a
victim that has suffered traumatic period. The court is urged then to award compensation to
the victim directly as well as the punishment to the offender. This is important and will
reduce extra pain and financial resources from the victim that has suffered damage.
As shown before, the knowledge on medical negligence is lacking without knowing
its legal foundation. That is, in order to establish medical negligence case and ask for
compensation, there is the need to invoke the tort law, which is the basis of this subject. The
three elements for establishing medical negligence in medical lawsuit are: duty of care,
breach of duty and causation/damage. It is the conclusion in this thesis that for a claimant to
succeed in the legal battle, the three elements must be proved.
In spite of the dispute in court for litigation, bad communication is being identified as
the key problem in many cases dealt with by the Medical Council. In reality, time pressures
and the strains of job make it hard to give patients satisfactory time and care they deserve.
Therefore, the best advice to medical practitioners is to engage with patients and to treat them

76
[1992] 6 NWLR 553

48
well. Indeed, there is no obvious link between medical expertise and susceptibility to
grievances and claims.
In fact, some less clinically skilled medical practitioner could go through their
entire profession without facing a legal or disciplinary encounter. That was part of what the
researcher discovered. Therefore, good communication between medical practitioners and
patients would result into a better knowledge of the nature of ailment, know the treatment
models and likely impediments capable of arising there from. Thereby, establishing a worm
relationship between the medical patient and the medical practitioner.
The investigation conducted in this thesis has examined the scope of professional
work as it relates to medical practice, the up keeping of standards and the sanctions in case
the standards fall below the satisfactory level. In case the standards fall below the expected
level, the aggrieved party may approach either the court or the regulatory body for proper
remedies. Therefore, the issue of professional negligence of a surgeon would arise where a
complaint is made to the court. However, prosecuting an action in court is with notable
challenges as earlier indicated in this thesis and as such plaintiffs usually feel aggrieved
because the legal procedures seem to be laborious and, sometimes, insurmountable obstacle.
It is on this premise that some notable recommendations were made to ensure balance in
the dispensation of justice and enhance access to justice in negligence cases relating to
medical practice.
The researcher wishes to therefore, conclude this study with the quotation
by MAHATMA GANDHI about (A CUSTOMER), in Medical Negligence for Doctors,
Patients and Hospitals, Should Know, in Shenoy P. D. 2003 which says:
A customer is the most important visitor on our premises, he is not dependent on us.
We are dependent on him. He is not an interruption in our work, he is the purpose of
it. He is not an outsider in our business. He is part of it. We are not doing him a favor
by serving him. He is doing us a favor by giving us an opportunity to do so.77

5.2. FINDINGS
This research has revealed the following;
i). The regulatory body has been to a very great extent effective in dealing with erring
medical practitioners. However, medical patients are quite unaware of its existence, i.e. the
MDPCN;

77
(2003) MAHATMA GANDHI in Shenoy P. D. “Medical Negligence for Doctors, Patients and Hospitals
Should Know”.

49
ii). The existing laws on medical negligence in Nigeria to some extent are indeed
commendable, but there is the need for amendments to the existing law on medical
negligence or in the alternative, a comprehensive law to regulate medical practices in Nigeria;
iii). The medical practitioners are quite aware of their legal duties to their patients and their
patients’ rights. In spite of the awareness of the legal duties of medical practitioners to their
patients and their patients’ rights, the study revealed the need for the medical practitioners to
cater more for the interest of their patients;
iv). Cases of medical negligence abound, but patients cannot report or litigate because of:
(a) poverty (b) length of litigation process which is high.
v). The populace has so much confidence in the judiciary, yet when their cases reach the
court, they are quashed on flimsy technicalities and make access to justice a difficult task for
medical patients, in spite of the so much hope of the patients in the judicial system.
vi). The level of awareness of medical patients as to their basic rights are grossly inadequate.
vii). Bad communication from medical practitioners to their medical patients

5.3. RECOMMENDATIONS
In order to lessen the occurrence of medical negligence and its damaging impact on
both the patients and the medical practitioners, the following recommendations are proposed:
i). There is a need to improve on ethical education for students of medicine and also enhance
public education and awareness, for better understanding of the culture of medical practice in
order to abreast them with the update of laws governing practice of medicine in Nigeria and
thereby lessening the incidence of surgical/medical negligence. To achieve the above could
be by way of organizing short-term courses, for medical practitioners on medico-Legal or
ethico-legal issues for proper care towards their patients.
ii). There is the need to reform the law of tort in Nigeria. This is because, the usual way for
seeking redress for damage suffered resulting from medical negligence is the tort system,
which has increasingly been subjected to criticisms.
iii). That in the dispensation of justice, the court should dispense with technicalities as many
cases have been set aside on such grounds and claimants went home with nothing.
iv). There is a need for increased enlightenment, awareness campaigns and education for the
public on medical negligence. These will enable them know when their rights as well as
patient’s rights are breached and also help them seek redress in appropriate quarters.
Therefore strengthening the existing laws to improve its effectiveness.

50
v). There should be an improved communication between medical practitioners and medical
patients in order to really understand the nature of illness and the appropriate treatment;
vi). It is further recommended that there should be a functional insurance scheme established
to enforce and implement the rights of patients and to cater for victims of medical negligence.
This scheme can be founded and funded by the government through the hospitals whether
public or private hospitals;
Having made some recommendations, if they are effectively nplemented, it will
reduce or eliminate issues of medical negligence and citizens would know their medical
rights also. It is hoped that the various recommendations made above would go a long way
towards resolving the various problems identified by the study.

5.4. CONTRIBUTIONS TO KNOWLEDGE

This study has contributed to knowledge in the following:
i). This study provides alternative causes of action through which a claim may be brought
successfully against a medical practitioner for medical malpractices and errors;
ii). The study establishes that there are no distinctions between cases of recklessness and
criminal negligence arising from sheer ignorance or incompetence under the Nigerian legal
framework;
iii). The study provides alternative compensation and redress scheme which will relief
patients from the hurdles of litigation in cases of medical malpractices and error.

51
 REFERENCES

BOOKS
1. Brazier, M.: (1987) Medicine, Patients and the Law, Penguin
2. John C., Law of Tort, (Pitman Publishing Co, Lodon, 1992).
3. Umerah B.C., (1989) Medical Practice and the Law in Nigeria,
4. Kodilinye G. Nigerian Law of Torts, Spectrum Law Publishing, Ibadan, 1990.
5. Professor Rogers W.V.F. Winfield and Jolowicz on Torts, Sweet and Maxwell,
London, 1975

JOURNAL ARTICLES
1. Akintola. S.O. (2000) Medical Negligence in Nigeria. An Appraisal University of
Ado – Ekiti Journal, volume 1 pp. 35 – 46.

INTERNET SOURCES
1. McCarthy: Malpractice http//nursingadvanceweb.com// continuing ICE, Articles.
>accessed 16 August 2023

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