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MEDICAL NEGLIGENCE AND THE RIGHTS OF NIGERIANS – THE EXPERIENCE OF HEALTHCARE PROVIDERS Background The core function of doctors and other medical personnel is to heal the sick, using the knowledge and skills at their disposal, in addition to a providing a caring attitude and an ambience conducive to recovery from illness. Everybody who goes to a doctor by himself, and every relation who takes a loved one to a clinic or hospital, goes there in the expectation that healing, or at least an improvement in symptoms, will occur. Because of this expectation, people are often prepared to go to great financial expense and surmount extreme logistic barriers in order to get to see a doctor. The Hippocratic Oath, which is taken in one form or another by every graduating doctor all across the world, acknowledges this burden of care, and commits the doctor to putting his expertise and compassion to work in the effort to preserve life and facilitate healing. Unfortunately, one of the sober facts of life is the reality of death, and the occasional inevitability of it. Many people die from illnesses ranging from Malaria to Cancer because they are unable to get medical help – a consequence of the fact that there is yet to be Universal Health Coverage in Nigeria, and many of the citizens simply cannot surmount the barriers of ignorance, finance, logistics and lack of services that keep them from accessing modern medical care. However, the reality and occasional inevitability of death does not just pertain to the person who is unable to get medical care. Many people who get to hospital still die. The main reasons why people die in health facilities are the following: 1. The nature of the illness: some illnesses carry a high risk of death anyway, irrespective of the skill and adequacy of medical intervention. Examples of these include Myocardial Infarction (Heart Attack), Cerebro-vascular Incident (Stroke), and some forms of cancer. 2. Late presentation: It is a common experience in this environment to find that a person has been ill at home for a significant length of time before he comes (or is brought) to hospital. In this situation, where illness has become ‘advanced’, relatively common infections such as Malaria, Upper Respiratory Tract Infection, Typhoid fever, and non-communicable diseases such as Diabetes Mellitus, Hypertension, and, of course, Cancer of various kinds can lead to death despite effective medical intervention, because the consequences of the prolonged wait, such as the spreading of the cancer to various organs, may render the medical intervention ineffective. 3. Late referral from lower-level facilities, including ‘Traditional’ and ‘Alternative’ practitioners: it is quite a common observation, especially as it concerns pregnancy and delivery, that some traditional birth attendants, or the operators of sub-standard or health facilities are not able to anticipate or recognize signs of danger in pregnant women. This leads to the unfortunate situation where they hold on to the patient until the danger is fully established and clearly beyond their capability e.g. obstructed labour. When there is extreme danger of death, the patient is then transferred to other facilities, usually government hospitals such as Ayinke House. Death of mother and/or baby is a frequent occurrence in such situations, and this may occur in transit, or soon after admission to the government facility. This leads to a situation whereby the highest level facilities appear to have a relatively high in-hospital mortality rate. As evidence, the hospitals are able to show that a large percentage of the patients who die are ‘unbooked’, meaning they were not registered with the hospital or receiving care there until they were sent in as emergencies by someone else. 4. Medical and Surgical Procedures: ‘Advanced’ medical and surgical interventions, such as Neurosurgery and Open Heart surgery carry significant risk of death or permanent injury. For this reason, the doctor is supposed to explain clearly to the patient the risks involved and get his informed consent prior to embarking on the operation. Even the most routine medical procedures carry some risk of unintended consequences, including death. This is especially true if the procedure includes the use of some form of anaesthesia. Anaesthesia (putting the patient to sleep through the use of chemical agents for medical purposes) by itself carries a risk. Although the risk is statistically very small, a mishap will happen once in a while. There are a myriad of examples of people who died in the course of supposedly simple and ‘safe’ medical procedures, including a former Nigerian First Lady. This is the reason for the signing of Consent Forms before Medical Operations and Procedures. 5. Inadequate, inappropriate, un-timely or incompetent medical care: The United States of America has one of the most highly rated healthcare systems in the world. It has been calculated, despite this fact, that in every year, there are about half a million ‘Medical Errors’ committed within the hospital system, leading to death or significant danger to patients. In a small percentage of these incidents, the patient becomes aware of what has happened and employs the services of a readily available pool of lawyers to sue the doctor and hospital for medical negligence. It is not unusual for significant ‘punitive’ damages to be awarded by the courts. On account of this, doctors are mandatorily covered by practice insurance, the premiums on which may be quite large in some ‘high-risk’ specialisations. In the Nigerian situation, because of the current absence of Quality measures in Medical Practice, including standardized operational protocols and procedures, it is not unusual for delays, errors and factors caused by poor staff attitudes to be perceived as contributing to negative outcomes for the patient. The Concept of MEDICAL NEGLIGENCE All the items listed under 5 above fall under the broad definition of ‘Medical Negligence’ or ‘Medical Malpractice’. Individuals and organisations such as health facilities, and even whole governments are technically accountable for such lapses. The truth, of course, is that most such incidents go unrecognized and unreported, as the patients, relatives, and general public are unaware of what happened. In societies where there is a high level of awareness and a readiness to resort to civil litigation (the USA is a perfect exemplar here) there are specialized ‘Medical Malpractice’ lawyers who earn millions of dollars every year from suing doctors and hospitals (often on a ‘no-win, no pay’ basis) for real or imagined incidents of Malpractice. The issue of CRIMINAL NEGLIGENCE This is an extreme and very rare occurrence, often involving a death, where because of the severe, obvious and egregious nature of the errors of omission or commission on the part of Medical Personnel, the Police and the Public Prosecutor decide to prosecute the individual health personnel, plus or minus the health facility, in the public interest, after having been alerted by the aggrieved party. Such prosecution is VERY RARE in most parts of the world. A recent example would illustrate the universality and complexities involved in this area. On July 15, 2016, a court in Ipswich, Suffolk, UK found Miss Honey Rose, a Locum Optometrist working at a local branch of Boots Opticians guilty of Manslaughter through Gross Negligence in what was noted as the first case of the sort in the UK. The Optometrist had seen eight year old Vincent Barker for a routine eye examination at Boots. The boy already had undiagnosed Hydrocephalus (fluid in the head) by that time, and the signs of the fluid in the boy’s brain should have been obvious to any competent doctor or optician doing a proper examination of his eyes. Miss Rose failed to pick up the warning sign. The boy died five months later from complications of Hydrocephalus. Please note that the healthcare practitioner here is NOT a doctor. Perhaps the procedure would have been different if it were a doctor. The General Medical Council (the UK equivalent of the Medical and Dental Council of Nigeria) might have reacted by a. immediately suspending her name from the Register b. making her face a panel for Professional Misconduct/Negligence. Would the Police have prosecuted for Criminal Negligence/Manslaughter? There is some controversy around the matter, and as disclosed earlier, the prosecution and jury conviction was a first of its kind for the UK. OTHER SITUATIONS AMOUNTING TO ‘MISCONDUCT’ There have occasionally been accusations of ‘rape’ or other forms of sexual assault occurring in the context of doctor-patient interaction. WHAT ARE THE AVENUES OPEN FOR THE AGGREIVED NIGERIAN PATIENT OR RELATIVE TO SEEK REDRESS? The practice of Medicine, including ‘Alternative Medicine’ in Nigeria is governed by Medical and Dental Practitioners Act Cap M8 (2004). Professional Discipline is enforced through the organs of an Investigation Panel and a Disciplinary Tribunal. Petitions against medical practitioners for professional wrongdoing are sent to the Investigation Panel, which is made up of 15 members chosen by the Council. They conduct a preliminary investigation of the alleged Misconduct, taking evidence from the petitioner and the accused practitioner. They can order a temporary suspension of the practitioner from practice, if they deem it necessary. If a case is established, they refer to the Disciplinary Tribunal and request ‘accelerated hearing within 3 months’ The Disciplinary Tribunal consists of the Chairman of the Council and ten other members of the Council. The Tribunal may decide on a range of penalties, ranging from striking the name of the offending doctor off the register to a suspension for a defined period of time. The penalties are subject to appeal through the Court of Appeal. This is what the law says about how to deal with Medical Malpractice in Nigeria. The Actual Experience of Healthcare Practitioners in Nigeria Some members of the public are already availing themselves of the option of writing petitions to the Medical and Dental Council to seek redress through the mechanism outlined above (statistics ?). Petitions may be submitted on-line through the MDCN website. The recourse to legal action through Civic litigation is also becoming an increasingly popular option, leading to a strong admonition for Medical Practitioners and Health Institutions to routinely take out Malpractice Insurance cover. Unfortunately, the evidence is also that increasing numbers of members of the public are resorting to ‘self-help’, or instigation of ‘strong-arm’ actions by the Police, under the guise of ‘police investigation’. Case Illustrations 1. A few years ago, after a patient died while undergoing treatment in the Emergency Unit of Lagos University Teaching Hospital, the aggrieved relatives mustered a crowd of people who invaded the Emergency unit, damaged property and severely assaulted the staff on duty. One Nurse died as a result of the assault. The Anniversary of that Nurse’s death is still marked as a solemn event by nursing staff in LUTH. 2. In LASUTH and some other government hospitals, it is not unusual for relatives, colleagues and ‘sympathisers’ to threaten or carry out assault on emergency staff following the death of patients brought in as a result of road traffic accidents or other conditions. The most problematic groups are University Students and members of motor park unions. During these incidents, workers have to hunker down and lock themselves indoors to prevent injury. Property damage such as the breaking of windows and doors is routine. Sometimes the police from ‘Area F’ have to be summoned to provide protection. In addition, following such incidents, the mob usually insists on taking the body of the deceased away, in violation of the provisions of the State’s Coroners Law, which stipulates that such persons be made to undergo autopsy precisely for the medico-legal benefit of establishing the true cause of death (including ascertaining objectively if there had been any negligence or error in the management). 3. There have been recent reports of Police arresting doctors from their hospitals and detaining them, following petitions received from aggrieved relatives. One particularly bizarre incident involved the police placing a doctor in handcuffs, claiming he was to be charged with ‘Murder’, and incarcerating him at Panti, all of this presumably following complaints concerning the death of a pregnant patient who had been brought to his hospital to deliver a baby and who apparently died while receiving treatment. WHY PEOPLE DIE – The Issues Involved The reality, as described earlier, is that everybody who dies or suffers injury in healthcare facility will have suffered that experience as a result of one or more of the reasons outlined at the beginning of this presentation. The Rights and Responsibilities of the Customer (Patient) The time of a significant illness, either in oneself or a loved one, is a time of great stress. There may be pain, discomfort, and the fear of death or disability, with their attendant social consequences. It is natural in these circumstances, for one to be irritable, demanding, and disinclined to exhibit the usual social graces, including politeness, consideration for other people and sensitivity to their feelings. A Customer (patient) in those circumstances has the following Responsibilities, among others: 1. to present himself promptly for treatment 2. to follow diagnostic and treatment instructions outlined by his caregiver 3. to pay – or arrange payment of the appropriate fees 4. to recognize the rights of other patients, and not seek to encroach unduly on them e.g. by demanding preferential service 5. to recognize the fact that his care-givers are also human beings and entitled to some rights such as a reasonable amount of courtesy and restraint, and to avoid abuse or hostility 6. to avoid threatening or disruptive behavior that may interfere with the atmosphere of care or cause danger or discomfort to other patients or staff. In return, the Customer (Patient) has the following Rights, among others: 1. A right to competent treatment in a decent atmosphere 2. A right to information and regular explanation on what is being done to alleviate his condition 3. A right to complain if he is dissatisfied with his management, including the attitude of staff 4. A right to seek a second opinion or the services of another health facility if he is disaffected 5. In the case of death of a relative, a right to seek evidence of cause of death through a post-mortem examination, especially if there is suspicion of medical negligence. 6. A right to seek redress for death or injury occasioned by Medical Negligence through recourse to the appropriate legal and professional mechanisms – i.e. report of Professional Misconduct to MDCN (as often happens in the UK), and civil litigation seeking damages (as is usually done in the USA). The Healthcare provider (principally the Doctor) has the following Responsibilities, among others: 1. To arm himself with knowledge and skills appropriate to his duties 2. To deploy such knowledge and skills fully in the service of his patient, for the purpose of preserving life and ensuring a recovery from illness 3. To create and present a caring atmosphere for diagnosis, treatment and recovery for his patient 4. To treat his patient with respect and ensure the preservation of his human dignity at all times Some of the Medical Practitioner’s Rights in the transaction include the following: 1. An entitlement to courtesy and respect of his human dignity 2. An entitlement to prompt payment for his services, where this is appropriate eg a private health facility 3. A right at all times to his personal safety and the safety of his staff in the practice of their profession, a right to demand that this be maintained, if necessary by the appropriate agents of the law (Police), and a right to withdraw his services if these cannot be guaranteed. Who is competent to determine Medical Malpractice/Negligence? Medical Malpractice may be functionally defined as the display by a medical practitioner of professional incompetence (as adjudged by his peers) in the handling of a patient, leading to adverse, and avoidable consequences (possibly including death) for the patient, and for which the individual or his relatives would be entitled to seek redress. The complaint may arise from the patient or his relatives, but may also arise from other members of the medical team. It arises from a perception or suspicion. On enquiry, the suspicion may be affirmed or refuted. Because it is necessary to know what is ‘Best Practice’ in order to determine what is ‘Malpractice’ in a situation, it has to be determined by persons who have technical knowledge in the specific field of medical practice. It cannot be accurately determined by ‘Common Sense’ or the sentiment of the general public. Although many health facilities (including public hospitals) have in-house mechanisms for dealing with clients’ complaints, the appropriate recourse for people with serious professional complaints is to make a formal petition/affidavit to the Medical And Dental Council of Nigeria, stating the details of the matter as perceived or suspected by them, and demanding urgent investigation and appropriate sanctions on the erring party. Complaints against Health Facilities in Lagos may also be channeled to HEFAMAA, which, while it has no powers to sanction individual practitioners, is empowered to impose sanctions against the facility itself, if found guilty. On receiving such a complaint, the MDCN is mandated to activate its Investigation Panel (constituted as already described). If the Investigation Panel determines that there is a case to answer, the matter is referred to the Disciplinary Tribunal (also constituted as already detailed). A hearing is set up for the accuser and the accused. At its conclusion, if the practitioner is found to have been negligent, sanctions, ranging from suspension to a total striking off from the practising register may be imposed. Such sanctions, when imposed, are binding, and applicable in every part of Nigeria. In addition, the aggrieved patient or relatives may institute Civil litigation to seek compensation for the damages caused by the professional negligence of the said healthcare worker. The process of determining such a suit in a Court of Law should normally include expert advice to the court from one or more professional peers of the accused doctor, indicating whether the management of the patient has followed appropriate professional steps, and met with appropriate professional standards, or whether professional malpractice has, indeed taken place. The issue of ‘Criminal Negligence’ It is conceivable that once in a while, as in the UK example earlier described, evidence will emerge that there has been such egregious professional mismanagement of a patient that the practitioner deserves not only severe professional sanctions but possible prosecution for manslaughter or some other crime, despite the fact that the death of the individual was not the conscious intention of the doctor, but arose from management that is clearly out of step with acceptable practice, as attested to by professional peers. In such an unlikely scenario, prosecution must be after the MDCN procedure has been followed, and must arise as part of its recommendations, or should at least involve some form of active dialogue and collaboration between the MDCN and the Police or Office of Public Prosecutor, a collaboration which is currently lacking. The accusation of ‘Murder’ It is bizarre in the extreme to talk of ‘Murder’ or the suspicion of it in a doctor-patient relationship, unless an obvious basis for an Intention to kill has been established. The patient would not be brought to the hospital if there was a suspicion the doctor had the intention to kill him, or something to gain by his demise. If he dies – without Intention, because of the doctor’s incompetence or negligence, that – everywhere in Law, and the civilized world, is Professional Malpractice, i.e. Manslaughter due to Criminal Negligence, at worst, and certainly NOT ‘murder’. The Recent spate of Arrests and Detention This recent reports of arrests, and the spectacle of handcuffing and detention of healthcare personnel is a clear display of ignorance and impunity that needs to be urgently arrested. It generally arises from ‘petitions’ purportedly written by aggrieved relatives. It is clear that the middle level DPOs and other policemen who give the instructions to their men to carry out such unwholesome police behavior are a. not aware of the implications b. acting with impunity because they do not expect to suffer any consequences c. currently not being supervised or called to order by their superiors. How should the Police treat ‘Petitions’ and other allegations of Professional Misconduct against Doctors? I am certain that Mr Femi Falana will have a lot to say in answer to this question, and I have no wish to ‘steal his thunder’. However I feel it necessary to make the following observations a. The MDCN complaints mechanism, while it has been proven to be of some use, is also clearly slow and cumbersome, at least in terms of meeting the short-term concerns of aggrieved patients and relatives. b. The mechanism is not well known to the public and needs to be widely advertised. Perhaps every doctor’s practice should be compelled to carry a public notice about how the public should pursue redress, if aggrieved. c. The mechanism is not well known to, or trusted by, the Police. Certainly they have felt no obligation to redirect any customer complaints or petitions to the MDCN. d. There is very little by way of collaboration or even communication between the MDCN and the Police. e. The statutory composition of the Investigation Panel and the Disciplinary Tribunal do not include non-medical representatives of the Public, such as Civil Society Organisations or NGOs. The presence of such people, even in the role of observers, might have helped to enhance public credibility, with the assurance that professionals would not just be ‘getting the back’ for one another. f. The Medical Press – such as the Health Page editors of newspapers, and the producers of television Health programmes have not thought it fit to carry out any enlightenment or any advocacy with the public on this matter. matter. RECOMMENDATIONS While leaving the matter of recommendations on how to institutionalize the protection of customer (patient)’s rights to Mr Falana, I wish to recommend the following ‘must-do’s to the Police as part of a protocol for responding to ‘Medical’ complainants/petitioners: a. The Police should assure the complainants that they are taking appropriate action to investigate their complaints b. The Police should forward petitions to the MDCN and demand accelerated action, with possible Police observer- representation on the panel. c. The police may interview the principals, including the complainant, but must maintain a clear neutrality of posture that does not prejudge the outcome. d. Due diligence needs to be done in cases where there has been death e.g. during childbirth or during a surgical operation, by ensuring that an autopsy is carried out. This ensures that all the information that may relevant to MDCN (and a possible later Police) investigation is gathered and made available. This can only happen if 1. The Coroner’s Law of Lagos State is updated and implemented compulsorily 2. An up to date Coroner’s Law is passed for the whole Nigerian nation. e. While the matter is ongoing, there must be no interference with the freedom of the doctor or his practice, and other patients wishing to benefit from his care must be able to continue to exercise their right to do so without undue interference. And some ‘must-do’s for Healthcare Practitioners, too: a. The Ministry of Justice, the Chief Justice (Lagos State and the Federation) and the Inspector General must be made aware of the issue, its implications, and the requirement for ‘self-help’ and ‘illegal detention’ to stop IMMEDIATELY. b. For any future inappropriate ‘arrest and detention’ by the Police, the NMA – through its Legal Adviser ( a certain Mr Femi Falana SAN) should sue the IG, the Commissioner of Police in the affected state, as well as all the Police Officers involved in the action, demanding EXEMPLARY PUNITIVE damages as a result of the loss of income, injury to professional image and personal liberty caused by the behavior of the Police. c. There should be readiness to take a test case all the way to the Supreme Court, if necessary. d. There should be advocacy with the Press, in order to secure a clear understanding with the public on the issues involved, and a push for strengthening and enhancement of MDCN complaint-handling mechanism in order to meet the need of the public for a transparent, fair and rapid response to patients’ grievances. e. Where healthcare workers are physically assaulted by patients or relatives in the course of their duties, and/or there is property damage as a result of such violent behavior, they should seek the assistance of the Police in prosecuting such offenders, both for the purpose of seeking redress, and also to prevent episodes similar to that which occurred in LUTH. Thank you. Dr Femi Olugbile FRCPsych FNIM

9th Oct 2016 No Comment

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