Drama of MEDICAL MALPRACTICE
(Barrister Ojulari sits inside his office, he is having a discussion with his Legal Intern)
BARR. OJULARI: (to the Intern) The last time that you went to the hospital, how did those Doctors attend to you?
INTERN: That day was a memorable day in my life, I was unconscious, I just discovered that I was on a hospital bed when I regained my consciousness, and I saw my mum rejoicing, I was told that I have been there for four days.
BARR. OJULARI: OK o, I am just asking this because there are some doctors that do not attend well to their patients, if you are a victim of those wicked doctors, we could just speak the language of law to them now.
INTERN: Honestly, the Doctor that attended to me treated me humanly. But I think that even if he did not treat me as he should, there is nothing I could do to make him culpable.
BARR. OJULARI: (Smile) Indeed, there are laws that make Doctors culpable whenever they err.
INTERN: Really!
BARR. OJULARI: Come off it! You should endeavor to know something about many things, that’s why you are a law student.
INTERN: OK Sir.
BARR. OJULARI: A client will be here soon to brief me. Her issue is related to Medical Malpractice. She should have been at the reception by now, I gave him an appointment to meet me by 2.00pm. Go and check if she’s there!
(The Legal Intern leaves the office for reception and returns with one husband and wife, He directs them to the chair where they have their seat)
BARR. OJULARI: Good Afternoon Sir and Ma’am
HUSBAND & WIFE : Good Afternoon Sir!
BARR. OJULARI: (to the husband) When you were talking to me on phone, told you to come to my office because I will like to ask some professional question from you wife.
HUSBAND: Okay Sir, she is here with me.
BARR. OJULARI: (to the woman) Madam! Would you please narrate what happened to me?
WIFE: Yes Lawyer! It happened that I was having an excruciating feeling some weeks after a Doctor performed a surgical operation on me, when I consulted another Doctor, he counseled me to perform an Xray, it was discovered in the Xray that some foreign objects were left inside my stomach during that Surgical operation.
BARR. OJULARI: That’s too awful. What kind of foreign material is it?
WIFE: It was revealed in that Xray that the Doctor that performed the operation on me left a surgical glove in my stomach. I went through life threatening pain! I was about to die before another doctor performed another operation on me to remove that glove.
BARR. OJULARI: Let me firstly tell you this, you have a good CAUSE OF ACTION, the erred Doctor must not go scot free. He must pay for it. That is called Medical Negligence. That Doctor has failed to exercise a reasonable duty of care that he owes you. He should not have been so much careless to forget any surgical equipment inside your stomach.
WIFE: Thank you D-Law. I have suffered. I had to undergo another operation because a doctor failed perform his duty correctly.
BARR. OJULARI: Meanwhile, “the relationship between a Doctor and his patient is one of trust and confidence; a relationship where one has the power and the duty to treat and restore the other to mental and physical wellbeing”[1]; it is pathetic that this doctor has failed to discharge that duty and uphold that confidence.
HUSBAND: To be honest, you are right.
BARR. OJULARI: Would you like to let us report to the police and send that erred Doctor in to prison to spend some jail terms according to Section 344 of the Criminal Code Act [2]?
(Both Husband and wife look at each other’s face)
HUSBAND & WIFE : Prison?
BARR. OJULARI: Yes now! If he’s found guilty under that Act, he would be sent to just six months imprisonment!
HUSBAND: Is there no other way that we can use to seek remedy?
BARR. OJULARI: There are other ways. One of them is that, we can report him to the Medical and Dental Practitioner Discipline Tribunal [3].
HUSBAND: What will later happen after we have reported to that agency?
BARR. OJULARI: It has a body known as Medical and Dental Practitioner Investigation Panel [4], it is that body that has the authority to investigate how that Doctor has misbehaved in the course of his duty.[5]
WIFE: Wow! Lawyer, you are loaded. I commend you sir.
BARR. OJULARI: Mind you, this panel is much powerful that it can force anyone to come and give evidence on what he knows before it by subpoena [6].
HUSBAND: What will the Discipline Tribunal do if it later found that Doctor to be guilty of Medical Negligence?
BARR. OJULARI: The Discipline Tribunal has the power to punish that Doctor with any of three things that has been provided by it’s law. It may Strike that Doctor’s name off from the register of Medical Practitioners.[7]
HUSBAND: Does that mean that, he will not be able to officially address himself as a Doctor anymore?
BARR. OJULARI: Yes, and if he dare to address himself as a Doctor after his name has been struck out of the Register, he will be risking 5 years imprisonment [8]! He may also be suspended from Medical profession for a period that is not more than 6 months [9]. Or, he may just be given a strong warning never to do such again[10].
WIFE: I don’t like that, what if he was just given warning without any other punishment? After he has caused me to go through an intense pain. That will not be a good remedy for me. I need a good restitution.
BARR. OJULARI: The last resort now is to institute a civil action against that Doctor to hold him liable for the offence of MEDICAL NEGLIGENCE. Through that, if he is found guilty of that offence, you will be awarded with monetary compensation (Damages) by the Court. I think that should restitute your suffering!
WIFE: That is Good, I like that. Let him pay monetary compensation to me.
BARR. OJULARI: You will just prove to the Court that you are his Patient, whom he should provide a professional duty of care for; he has failed to provide that professional duty correctly by negligently left a surgical glove inside your stomach. This has made you to suffer damage because another operation has to be carried out upon you before you could recover from that pain.
WIFE: Of Course I can prove that, but I don’t have the receipt of that transaction with me anymore, it has been lost, and I am afraid if that Doctor won’t have cancelled some parts of my health record in that hospital where he is working to cover himself from legal trouble.
BARR. OJULARI: You don’t have to worry about that, Your health record must not be tampered, anyone who tampers with yours, or any other person’s health record in that hospital will be risking two years imprisonment or fine [11].
WIFE: D-law! I like it like that.
BARR. OJULARI: We will also join the hospital management in our Suit. We will drag that hospital too to court for the tort of VICARIOUS LIABILITY.
HUSBAND: (curiously) What do you mean by that?
BARR. OJULARI: This is a principle of law that gives us the right to hold the master responsible for the misconduct that his employee does while discharging his employment duty.[12]
WIFE: That is good too, let us drag them to Court together. I like it that way.
BARR. OJULARI: Lest I forget, How long has this happened to you?
WIFE: It is now more than a year.
BARR. OJULARI: I ask that because this kind of matter can not be taken to Court any more if it has been more than a period of three years [13]. Don’t worry, everything will be alright. I have never loose a case, and I know that your case will not be the first that I will loose.
HUSBAND: We are very grateful Sir. Please give us your account details so that we can quickly transfer you professional fee to you.
(Light fades)
To be Continued.
FOOTNOTE:
CAUSE OF ACTION: an acceptable reason in law for taking legal action against someone
REFERENCES:
[1]. Abatan v. Awudu (2014) 17 NWLR (Pt. 430)
[3]. Section 15 (1) of the Medical and Dental Practitioner Act, 2004
[4]. Section 15 (3) of the Medical and Dental Practitioner Act, 2004
[5]. Section 15 (3) (a) of the Medical and Dental Practitioner Act, 2004
[6]. Section 15 (3) (b) of the Medical and Dental Practitioner Act, 2004
[7]. Section 16 (2) (a) of the Medical and Dental Practitioner Act, 2004
[8]. Section 17 (1) (a-d) and Section 17 (5) (b) of the Medical and Dental Practitioner Act, 2004
[9]. Section 16 (2) (b) of the Medical and Dental Practitioner Act, 2004
[10]. Section 16 (2) (c) of the Medical and Dental Practitioner Act, 2004
[11] Section 29 (1) of National Health Act, 2015; Section 29 (2) (b) of National Health Act, 2015
[12]. Rotimi v. Adegunle (1959) 4 FSC 19
[13]. Section 9, Limitation Act; See also Section 10, Limitation Law of Lagos.
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ABDULRAUF Abdullahi Adebayo, is a Law student, a Certified Teacher and a Writer. He can be reached via the following platforms;
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