There is a popular saying within the medical community that goes, “We care, but God cures.” While this statement often serves as a reminder of the limits of human intervention, a medical practitioner is highly expected to exercise utmost care and diligence as they deal with the very essence of human life. But what happens when that duty of care is breached, resulting in harm or injury to a patient?

A 2017 study on medical errors in Nigeria published by the Archives of Medicine and Health Sciences revealed a negligence rate of 42.8% among 145 medical practitioners.[1]The report indicated that the three most prevalent errors were medication prescription errors (95.2%), errors in radio-laboratory investigation (83.9%), and errors in physician diagnoses (69.4%), making medical negligence the third leading cause of death in Nigeria, following cancer and cardiovascular disease. Yet, many patients still remain silent on issues related to medical negligence and fear taking legal action against the perpetrators of this act.

This article, therefore, provides a comprehensive analysis of litigating medical negligence cases in Nigeria, the essential elements to make a valid claim, and landmark cases that have helped patients seek accountability within the Nigerian healthcare system.

THE CONCEPT OF MEDICAL NEGLIGENCE

Medical negligence is regarded as the improper, unskilled, or negligent treatment of a patient by a healthcare professional who owed them a duty of care. It constitutes an act or omission by a medical practitioner that falls below the accepted standard of care, resulting in injury, harm, or even death of the patient.^[2]

In Nigeria, our medical practice is regulated by an intricate web of laws, rules, and policies, such as the Medical and Dental Practitioners Act, 2004^[3] and the National Health Act, 2014^[4]. The National Health Act, for instance, contains crucial provisions emphasizing patient rights, such as the right to be informed of their health status or the right to refuse treatment after a detailed explanation^[5].

In a similar vein, the law^[6] also provides an injured patient the right to a cause of action for medical negligence when he or she suffers any harm or injury from the negligent act of a medical professional.^[7]

THE PILLARS OF A NEGLIGENCE CLAIM: ELEMENTS OF PROOF

To successfully litigate a medical negligence case in Nigeria, the Complainant must carefully establish four fundamental elements, consistent with general tort law principles: Duty of Care, Breach of Duty, Causation, and Damage.^[8]

A. DUTY OF CARE:

This is a legal obligation for a healthcare professional to take reasonable care to avoid causing foreseeable injury to another. In the medical context, a duty of care is necessarily implied and arises once a patient is accepted for treatment, establishing a doctor-patient fiduciary relationship.^[9] This relationship inherently includes an implied term that the doctor will exercise reasonable skill and care. The concept of duty of care is founded on the neighbour principle established in Donoghue v. Stevenson^[10], which serves as a yardstick for determining when a duty of care is owed. In University of Ilorin Teaching Hospital v. Akilo^[11], it was held that a Medical Practitioner in the Appellant’s employment would be liable in negligence if, without due care and skill resulting in error of treatment, he, for example, describes fractures as dislocations and dislocations as fractures.

B. BREACH OF DUTY:

A breach occurs when the healthcare professional fails to act in accordance with the standards of their profession and deviates from what a reasonable and competent practitioner would have done in the same circumstances. Specific instances include failure to attend promptly to an emergency, incompetent patient assessment, incorrect diagnosis, failure to advise on risks, mistakes in treatment, or failure to refer a patient when necessary. The standard for proving breach requires that the medical professional’s actions be deemed a mistake by professional colleagues, falling short of the expected standard of a reasonably skilled medical professional.

In Otti V. Excel-C Medical Centre Ltd & Anor^[12], the court held that it is a rudimentary law that in order to find a medical professional guilty of negligence, the situation has to be such that what he did is what professional colleagues would say that he really made a mistake and he ought not to have made it. Put differently, the actions would be such that they fall short of the standard expected of a reasonably skilled medical professional.

C. CAUSATION:

This element requires establishing a direct link between the breach of duty and the injury or loss suffered by the patient. The harm suffered must be a reasonably foreseeable consequence of the Defendant’s conduct.^[13]The Claimant must prove this causal link on the balance of probabilities, meaning a likelihood of more than 50%. For example, if a doctor’s misdiagnosis leads to kidney failure and death, causation may be established. However, if the kidney failure was due to an unrelated factor, the chain of causation may be broken.

D. DAMAGE/INJURY:

The Claimant must have suffered actual harm or loss as a direct result of the breach of duty. Without proof of damage, the Defendant will not be held liable. Damages can include physical injuries, psychological injuries, financial losses (e.g., loss of income, medical bills), pain and suffering, and loss of amenities of life.

LIABILITY AND PUNISHMENT FOR MEDICAL NEGLIGENCE.

Victims of medical negligence in Nigeria have several avenues for seeking redress, ranging from administrative complaints to civil litigation and, in some severe cases, criminal prosecution.

A. NON-LITIGIOUS AVENUES

An aggrieved person can first write a direct complaint letter to the doctor or their employer, potentially leading to an amicable settlement. Alternatively, a formal complaint can be filed with the Medical and Dental Council of Nigeria (MDCN). The MDCN, as the primary regulatory body, operates Investigation and Disciplinary Tribunals, which can sanction guilty practitioners with license suspension or withdrawal. In this scenario, the Council pursues sanctions on behalf of the patient, who acts as a witness.^[14]

B. CIVIL LITIGATION: INSTITUTING A LAWSUIT

The aggrieved person can directly institute a civil action for redress in a court of appropriate jurisdiction. This is a direct legal battle where the patient (Plaintiff/Claimant) and the doctor (Defendant) must prove their case. Seeking legal advice from a specialized lawyer is the crucial first step to assess the case and guiding you through the process.^[15]

A critical consideration is the statute of limitations, as claims can be out of time or statute-barred if not instituted within specified time frames, which is an absolute defence. Common defences available to medical practitioners include arguing no breach of duty, asserting informed consent, and claiming contributory negligence by the patient.^[16]

C. CRIMINAL LIABILITY

A report can also be made to the police for criminal prosecution, especially in cases of death or grievous bodily injury. While pure negligence is not inherently criminal, instances entangled with criminal aspects can lead to charges like murder or manslaughter under the Criminal Code Act.

Moreover, depending on the nature of their actions during their course of duty, medical practitioners can potentially be held liable for other offenses as well. In Denloye V. Medical Practitioners Disciplinary Committee^[17], the court stated that where the nature of the act or omission of a medical practitioner amounts to a crime, the regular law court must determine the criminal aspect of it before liability is determined under the Medical and Dental Practitioners Act with respect to misconduct or infamous conduct.

D) THE BURDEN OF PROOF

In medical negligence cases, the burden of proof lies with the claimant, requiring them to demonstrate that the healthcare provider’s actions fell below the standard of care, and this breach of duty caused their injuries or worsened their condition.  In Delta State Hospitals Mgt Board & Ors v. Onome^[18], the Court of Appeal held:

 “The law is also settled that in an action for negligence, the Plaintiff (Claimant) is entitled only to recover on the particulars of negligence pleaded and proved to the satisfaction of the trial Court. Accordingly, it is insufficient and inappropriate for a Claimant to make a blanket allegation of negligence against a Defendant without giving full particulars of the items of negligence relied on as well as the duty of care owed him by the Defendant”.

The burden of proof can be exceptionally challenging for victims, as medical malpractice cases often involve complex medical issues to establish causation and require expert medical testimony. Hence, it is important to engage the services of a medical lawyer once it is seen that a medical negligence case has occurred. In Ojo Vs. Gharoro^[19], the Supreme Court heard an appeal where a broken needle was allegedly left in a patient’s abdomen after surgery. The Court emphasized the crucial role of expert evidence in technical medical cases, stating that its absence seriously weakens a plaintiff’s case.

Sadly, the incidence of medical negligence has increased sporadically over the years, and despite the government’s crucial role in ensuring that this menace is curbed to its barest minimum, there is no political will to do so because many public office holders don’t patronise Nigerian hospitals. It is, however, important to note that not all medical mishaps are acts of God; therefore, there should be more accountability in the Nigerian health care system.

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[1] The Guardian News. Menace and consequence of medical negligence in Nigeria. Accessed 12, 2025 https://guardian.ng/opinion/menace-and-consequence-of-medical-negligence-in-nigeria/

[2] An Overview of Medical Negligence in Nigeria and Its Legal Implications. Accessed August 12, 2025, https://blog.judy.legal/an-overview-of-medical-negligence-in-nigeria-its-legal-implications/

[3] Medical and Dental Practitioners Act, 2004

[4] National Health Act, 2014

[5] Section 23 of the National Health Act, 2014

[6] Section 16(2) of the Medical and Dental Practitioners’ Act

[7] Section 15(1) of the Medical and Dental Practitioners’ Act

[8] Proving Medical Negligence in Nigeria: A Narrative Review of the Roles of Tribunals, Regulatory Bodies and Councils – ResearchGate, accessed August 12, 2025, https://www.researchgate.net/publication/389654167_Proving_Medical_Negligence_in_Nigeria_A_Narrative_Review_of_the_Roles_of_Tribunals_Regulatory_Bodies_and_Councils

[9] Legal perspectives on liability for medical negligence and malpractices in Nigeria – PMC, accessed August 12, 2025, https://pmc.ncbi.nlm.nih.gov/articles/PMC7245980/

[10] (1932) AC 562

[11] (2002) FWLR (Pt. 28) 2286

[12] (2019) LPELR – 47699 (CA)

[13] An Insight into Medical Negligence under Nigerian Jurisprudence – LawPavilion Blog, accessed August 12, 2025, https://lawpavilion.com/blog/an-insight-into-medical-negligence-under-nigerian-jurisprudence/

[14] Olawunmi Ojo, Nigeria: Medical Negligence in Nigeria. The Legal Remedies (2022). accessed August 12, 2025 https://www.mondaq.com/nigeria/healthcare/1254460/medical-negligence-in-nigeria-the-legal-remedies

[15] A Contextual Analysis Of Medical Negligence: Duties And Responsibilities, Liabilities, Medical Ethics and Defenses. accessed August 12, 2025,https://threshold-attorneys.com/wp-content/uploads/2021/03/A4-1-merged-1-compressed-1.pdf

[16] Medical Ethics and Patient Rights in Nigeria – SURJEN Healthcare, accessed August 12, 2025, https://www.surjen.com/blog-details/medical-ethics-and-patient-rights-in-nigeria

[17] (1968) LPELR 63198 (SC)

[18] (2022) LPELR-59333 (CA)

[19] (2006) LPELR-2383 (SC)

Written by Olufe Popoola & Olatunji Bamidele for The Trusted Advisors

Email us: info@cms.trustedadvisorslaw.com

Telephone Number: +234 810 159 9159