Medical Negligence And The Burden Of Proof Under The Nigerian Legal System: An Analysis Of The Applicable Principles, Evidence And Judicial Approach -By Job Joseph

ABSTRACT

Medical negligence is an important area of tortious liability which arises from the failure of a medical practitioner, hospital or other healthcare provider to exercise the degree of care and skill reasonably expected in the circumstances of a patient’s treatment. In Nigeria, a claimant alleging medical negligence bears the burden of establishing the essential elements of the claim on the balance of probabilities. These include the existence of a duty of care, breach of that duty, causation and resulting damage. This article examines the legal framework governing medical negligence under Nigerian law. It considers the standard of care expected of medical practitioners, the burden and standard of proof, the role of expert evidence, the distinction between direct evidence and hearsay, the evidential significance of medical records, the doctrine of res ipsa loquitur, and the principles governing causation. Particular attention is given to the “but-for” test as a means of establishing factual causation. The article also examines selected Nigerian judicial authorities, including Ojo v Gharoro, University of Ilorin Teaching Hospital v Abegunde, and UTB (Nig) Ltd v Ozoemena. It argues that while medical negligence claims may involve complex medical questions, Nigerian law does not make expert evidence an inflexible requirement in every case. Where negligence is sufficiently apparent from the facts and documentary evidence, the court may determine the issue without independent expert testimony. Ultimately, liability depends upon whether the claimant has established, on the balance of probabilities, that the healthcare provider breached the applicable standard of care and that such breach caused the injury complained of.

Keywords: Medical negligence, duty of care, breach, causation, but-for test, expert evidence, res ipsa loquitur, burden of proof, Evidence Act, Nigeria.

INTRODUCTION

The relationship between a patient and a medical practitioner is founded upon trust, professional responsibility and the expectation that medical treatment will be administered with reasonable care and skill. However, medical practice is not an exact science, and an unsuccessful medical outcome does not automatically translate into legal liability. Medical negligence arises where a medical practitioner or healthcare institution falls below the standard of care reasonably expected of a competent practitioner in the circumstances and that failure results in injury, loss or death. The law therefore draws an important distinction between an unfortunate medical outcome and a negligent medical outcome. A doctor is not an insurer against every risk associated with medical treatment. Conversely, the fact that an injury occurs during medical treatment does not immunise a healthcare provider where the evidence demonstrates a departure from the required standard of care. The Supreme Court has consistently treated negligence as a question of fact to be determined from the circumstances of each case. In UTB (Nig) Ltd v Ozoemena, the Court reiterated that the claimant alleging negligence bears the initial burden of establishing the facts constituting the negligence, and that the burden does not shift until a prima facie case has been established.(1)

Medical negligence claims therefore require careful consideration of both substantive and evidential principles.

CONCEPTUAL UNDERSTANDING OF MEDICAL NEGLIGENCE

Negligence generally consists of a failure to exercise the degree of care which a reasonable person would exercise in similar circumstances. In the medical context, the standard is adapted to the professional nature of the relationship. The relevant question is whether the medical practitioner exercised the degree of reasonable care and skill expected of a reasonably competent medical practitioner. The mere fact that treatment has failed does not establish negligence. As the Supreme Court observed in Ojo v Gharoro, a medical practitioner is not to be held negligent merely because a mishap occurred. The court must examine the circumstances and determine whether the practitioner fell below the required professional standard.(2)

Medical negligence may therefore arise from various acts or omissions, including:

1. misdiagnosis
2. negligent surgical procedures
3. improper administration of medication
4. failure to properly monitor a patient
5. failure to respond appropriately to an emergency
6. failure to obtain informed consent in appropriate circumstances
7. failure to take adequate precautions
8. failure to provide treatment in accordance with the standard reasonably expected of a competent medical practitioner.

The critical question remains whether the conduct complained of amounted to a breach of the applicable duty of care.

ELEMENTS OF MEDICAL NEGLIGENCE

A claimant seeking damages for medical negligence must ordinarily establish four interconnected elements:

Duty of Care

The defendant owed the claimant a duty of care.

Breach of Duty

The defendant breached that duty by failing to exercise reasonable care and skill.

Causation

The breach caused or materially contributed to the injury complained of.

Damage

The claimant suffered legally recognisable injury or loss as a consequence. These requirements are cumulative. The establishment of a duty of care without proof of breach is insufficient. Similarly, proof of breach without proof that the breach caused the damage complained of will not ordinarily sustain an action in negligence.

DUTY OF CARE IN MEDICAL NEGLIGENCE

The existence of a duty of care in the doctor-patient relationship is ordinarily straightforward. Once a medical practitioner or hospital undertakes the treatment of a patient, a professional relationship arises and the medical practitioner assumes a legal obligation to exercise reasonable care and skill.

Thus, where a patient presents herself at a hospital for antenatal treatment, surgery, emergency care or any other medical service, the healthcare provider owes her a duty to provide treatment in accordance with the standard reasonably expected of a competent medical practitioner. The duty extends beyond the doctor personally to circumstances involving the hospital and its medical personnel, depending on the facts of the particular case. The existence of the duty, however, does not mean that every adverse outcome creates liability. The claimant must still establish breach and causation.

BREACH OF THE DUTY OF CARE

The second requirement is proof that the defendant breached the duty of care. The applicable standard is that of a reasonably competent medical practitioner in the circumstances. In Ojo v Gharoro, the Supreme Court considered the circumstances surrounding a surgical operation in which a needle was broken and retained in the patient’s abdomen. Although the occurrence itself was unfortunate, the Court considered the evidence and found that negligence had not been established against the medical practitioners.(3) The case demonstrates an important principle: the mere occurrence of an injury does not automatically establish medical negligence. The court must determine whether the conduct complained of represented a departure from the standard reasonably expected of a competent medical practitioner. The distinction is particularly important in cases involving medication errors.

For instance, where a patient is prescribed 6 International Units of insulin but is instead administered 61 International Units, the court may examine whether the administration constituted a departure from the required standard of care. The fact that the dosage was ten times the prescribed amount may constitute powerful evidence of breach, particularly where the error is subsequently acknowledged by the medical personnel involved. The determination remains one of evidence and must be made in the circumstances of the particular case.

BURDEN AND STANDARD OF PROOF

Medical negligence is ordinarily pursued as a civil claim. Accordingly, the claimant is required to prove the case on the balance of probabilities. Sections 131–134 of the Evidence Act 2011, as applicable to civil proceedings, establish the general principles concerning burden and standard of proof. The Supreme Court in UTB (Nig) Ltd v Ozoemena stated that the burden of proving negligence rests on the claimant who alleges it. The claimant must establish by evidence the conduct or omission complained of and the circumstances giving rise to the alleged breach.(4) The burden does not automatically shift merely because negligence has been pleaded. The claimant must first establish a prima facie case. Once credible evidence establishes the facts constituting the alleged breach, the evidential burden may shift to the defendant to rebut the case.

Consequently, a claimant cannot simply assert:

“The doctor was negligent.”

The claimant must establish what the doctor did or failed to do, why that conduct amounted to a departure from the required standard, and how that departure caused the injury complained of.

CAUSATION: THE LINK BETWEEN BREACH AND DAMAGE

Causation is one of the most important components of a medical-negligence claim. It is not enough for a claimant to establish that a medical practitioner owed a duty and breached that duty. The claimant must establish that the breach caused the injury or damage for which compensation is sought. This is because a patient may suffer an adverse medical outcome independently of any negligence. The court must therefore establish the causal connection between the defendant’s conduct and the claimant’s injury. In a claim involving death, for example, it is not enough to demonstrate that the deceased was negligently treated and subsequently died. The claimant must establish that the negligent treatment caused or materially contributed to the death. Causation therefore represents the bridge between breach and damage.

THE “BUT-FOR” TEST

One of the useful approaches to factual causation is the “but-for” test.

The question is:

But for the defendant’s negligent act or omission, would the injury have occurred?

If the injury would probably not have occurred but for the defendant’s conduct, the conduct may be regarded as a factual cause of the injury. In medical negligence, the test must be applied alongside the totality of the evidence.

For example, where a patient is prescribed 6 International Units of insulin but is repeatedly administered 61 International Units, and immediately thereafter develops severe hypoglycaemic symptoms, the court may ask:

But for the administration of the excessive dosage, would the patient have suffered those particular complications?

Where the evidence establishes on the balance of probabilities that the complications would not have occurred but for the negligent administration, factual causation may be established. However, the test must not be applied mechanically. Medical conditions may have multiple causes. A patient may have a pre-existing disease, develop complications independently, or suffer an injury arising from a combination of circumstances. The court must therefore examine the entire chain of events.

CAUSATION AND THE CONTINUOUS CHAIN OF EVENTS

In cases involving multiple medical events, causation may be established by examining the sequence of events from the alleged breach to the eventual injury.

For example, where the evidence demonstrates that:

1. an incorrect medication dosage was administered
2. the patient immediately developed severe symptoms
3. the error was subsequently discovered
4. the patient’s condition deteriorated
5. the patient complained of worsening symptoms
6. an emergency intervention was requested but not undertaken
7. the patient subsequently suffered the injury complained of

the court may consider whether those events constitute a sufficiently connected chain from breach to damage.

The question is ultimately one of probability.

The claimant is not required to demonstrate causation with mathematical certainty. The claimant must establish that it is more probable than not that the breach caused the damage. This is particularly important where the defendant argues that the injury resulted from an alternative cause.

EXPERT EVIDENCE IN MEDICAL NEGLIGENCE

Medical negligence frequently involves technical questions which are beyond the ordinary knowledge of the court. Expert evidence can therefore be extremely important. However, it would be incorrect to state that expert evidence is an indispensable requirement in every medical-negligence action.

The circumstances of the particular case determine whether expert evidence is necessary.

In Ojo v Gharoro, the Supreme Court considered the professional nature of the case and emphasised the importance of expert evidence where the allegation of negligence involves matters requiring specialised medical knowledge.(5) Similarly, University of Ilorin Teaching Hospital v Abegunde demonstrates the importance of examining the medical evidence and the circumstances surrounding the treatment complained of.(6) However, where the alleged negligence is so obvious that it falls within ordinary human understanding, the necessity for independent expert testimony may be reduced. A simple medication error, for example, may present a different evidential question from a complex dispute concerning competing surgical procedures or medical treatment protocols.

The proper position is therefore that expert evidence is highly important where the issue requires specialised medical knowledge, but it is not an absolute condition in every medical-negligence case.

DIRECT EVIDENCE AND HEARSAY

Another important evidential issue is whether the testimony of the patient constitutes hearsay.

A patient is competent to testify about matters personally experienced or observed.

For example, a patient may give direct evidence concerning:

1. admission into the hospital
2. medication administered to him or her

iii. physical symptoms immediately experienced

1. complaints made to medical personnel
2. instructions received
3. requests for medical intervention

vii. events personally witnessed.

Such testimony does not become hearsay merely because the events occurred within a medical setting.

In Ojo v Gharoro, the Supreme Court considered the distinction between direct evidence and hearsay in the context of medical treatment and recognised the evidential value of testimony founded upon personal knowledge.(7) The critical question is whether the witness personally perceived the fact being testified to or is merely repeating a statement made by another person to establish the truth of that statement.

MEDICAL RECORDS AS EVIDENCE

Medical records are often the most important documentary evidence in medical-negligence litigation.

Such records may include:

1. patients’ case notes
2. prescriptions

iii. drug administration charts

1. nurses’ notes
2. laboratory results
3. antenatal records

vii. operation notes

viii. treatment instructions

1. monitoring charts
2. discharge summaries.

The importance of these documents cannot be overstated because they provide contemporaneous evidence of what occurred during treatment. Where the original medical records are in the custody or control of the defendant, the claimant may face difficulty producing them. The Evidence Act recognises circumstances in which secondary evidence may be admissible where the original document is in the possession or power of the opposing party and that party fails to produce it after proper notice.(8) Therefore, a hospital or medical institution cannot deliberately withhold relevant original records and subsequently seek to benefit from that withholding by arguing that the claimant has failed to produce the records.

ADVERSE INFERENCE FROM WITHHOLDING EVIDENCE

The evidential consequences of withholding relevant evidence are particularly significant in medical-negligence claims. Section 167(d) of the Evidence Act permits the court to presume that evidence which could be produced but is not produced would, if produced, be unfavourable to the person withholding it. The Supreme Court reaffirmed this principle in Bakari v Ogundipe, where the Court considered the consequences of withholding evidence which was available to a party.(9) The principle is based on common sense: where a party possesses relevant evidence capable of clarifying a disputed fact but deliberately fails to produce it, the court may draw an inference against that party, subject to the circumstances of the case. This principle can be particularly significant where a hospital possesses the original medical records and refuses to produce them despite a proper notice to produce or a court order.

THE DOCTRINE OF RES IPSA LOQUITUR

The doctrine of res ipsa loquitur literally means “the thing speaks for itself.” It may apply where the circumstances surrounding an occurrence are such that the event ordinarily would not have happened without negligence and the relevant instrumentality was under the control of the defendant.

However, its application to medical negligence requires caution. Medicine involves inherent risks and complications. Therefore, the mere fact that a patient suffered an unexpected outcome does not automatically justify an inference of negligence. The Supreme Court’s decision in Ojo v Gharoro is instructive. The case involved a broken surgical needle left in the patient’s abdomen. Despite the unusual occurrence, the Court examined the evidence and did not simply impose liability merely because the event occurred.(10) Thus, res ipsa loquitur is not a substitute for proof in every medical-negligence claim. Where the circumstances speak sufficiently clearly of negligence, however, the doctrine may assist the claimant’s case.

MEDICAL COMPLICATION VERSUS MEDICAL NEGLIGENCE

A fundamental principle in medical-negligence litigation is that not every medical complication constitutes negligence. Medical practitioners deal with human bodies and medical conditions that are often unpredictable.

A patient may:

1. undergo a successful operation but develop complications
2. receive appropriate treatment but fail to recover
3. suffer an adverse reaction to medication
4. die from an underlying disease despite proper treatment.

None of these circumstances, standing alone, establishes negligence. The claimant must establish that the medical practitioner departed from the applicable standard of care. This principle prevents the law from turning medical practitioners into insurers of their patients’ health. At the same time, it ensures accountability where the evidence demonstrates an actual departure from reasonable professional care.

THE ROLE OF ADMISSIONS BY MEDICAL PERSONNEL

Admissions made by medical personnel may be significant evidence in a medical-negligence claim.

For example, where a medical practitioner acknowledges that:

1. a different dosage was prescribed
2. an incorrect dosage was administered

iii. an error occurred

1. a patient requested an emergency intervention
2. a particular treatment was not provided,

such admissions may materially support the claimant’s case. However, an admission of an error does not necessarily resolve every aspect of liability. The claimant must still establish the legal significance of the error and, importantly, causation. Thus, the court must distinguish between: an admission that something went wrong and proof that what went wrong constituted actionable negligence and caused the damage complained of.

THE APPELLATE COURT AND FINDINGS OF THE TRIAL COURT

Medical-negligence cases are substantially dependent on evidence. The trial court sees and hears the witnesses and evaluates the documentary evidence. Where the trial court has properly evaluated the evidence and its findings are supported by the record, an appellate court is generally reluctant to interfere merely because it might have reached a different conclusion. In University of Ilorin Teaching Hospital v Abegunde, the courts examined extensive oral and documentary evidence surrounding the treatment which was alleged to have caused the deceased’s death.(11) Similarly, Nigerian appellate courts have repeatedly maintained that findings of fact supported by credible evidence should not ordinarily be disturbed on appeal unless shown to be perverse or otherwise affected by an error of law. The implication is that an appellant challenging a finding of medical negligence must demonstrate more than the existence of another possible interpretation of the evidence. The appellant must show that the finding was unsupported by the evidence, perverse, or occasioned a miscarriage of justice.

PROOF OF MEDICAL NEGLIGENCE: A PRACTICAL FRAMEWORK

From the foregoing principles, a claimant seeking to establish medical negligence should ordinarily address the following questions:

1. Was there a doctor-patient relationship?

If the defendant undertook the treatment of the claimant, the existence of a duty of care will ordinarily follow.

2. What was the applicable standard of care?

The claimant must identify the standard reasonably expected of a competent medical practitioner in the circumstances.

3. What exactly did the defendant do or fail to do?

The alleged negligence must be particularised and supported by evidence.

4. Did that conduct constitute a breach?

The court must determine whether the defendant departed from the applicable standard.

5. Did the breach cause the injury?

The claimant must establish causation, including by applying the but-for test where appropriate.

6. What evidence supports the claim?

This may include:

i medical records

1. prescriptions

iii. drug charts

1. expert testimony
2. testimony of the patient
3. testimony of medical personnel

vii. admissions

viii. laboratory results; and

1. other relevant documentary evidence.
2. Is there an alternative explanation?

Where the defendant identifies another possible cause of the injury, the claimant must address it and establish why the alleged breach remains the more probable cause.

CHALLENGES IN PROVING MEDICAL NEGLIGENCE IN NIGERIA

Despite the legal principles available, medical-negligence litigation presents substantial evidential challenges.

First, the defendant hospital may possess the principal medical records necessary to establish what occurred.

Second, medical negligence often involves technical questions requiring specialised evidence.

Third, patients may lack the financial resources necessary to obtain independent medical opinions and sustain prolonged litigation.

Fourth, the medical practitioner and hospital may possess greater knowledge of the treatment than the patient, creating an evidential imbalance.

Fifth, the claimant may face difficulty establishing causation where the patient had an underlying medical condition or where several possible causes of the injury exist. These challenges make proper preservation and production of medical records particularly important.

CONCLUSION

Medical negligence under Nigerian law is not established merely because medical treatment produces an undesirable outcome. The law requires proof that the healthcare provider owed the claimant a duty of care, breached that duty, and that the breach caused legally recognisable damage. The burden initially rests on the claimant and is discharged on the balance of probabilities.

The most important elements may therefore be summarised as:

Duty of Care = Breach = Causation = Damage.

Causation occupies a particularly important position in this chain. A claimant must connect the alleged negligent conduct with the injury complained of. The but-for test provides a useful means of establishing factual causation, but the court must ultimately examine the entire chain of events and determine whether, on the balance of probabilities, the injury resulted from the defendant’s breach.

Expert evidence remains highly relevant, especially where the issues are technical and beyond ordinary knowledge. Nevertheless, it is not an inflexible requirement in every case. Where the negligence is sufficiently obvious from the facts, documentary evidence and admissions before the court, the court may determine the issue without requiring an independent expert to state what is already apparent.

Similarly, medical records constitute important evidence, particularly where they provide contemporaneous evidence of treatment. A defendant who possesses relevant original records cannot ordinarily rely on the claimant’s inability to produce those records after deliberately withholding them, especially where the claimant has taken appropriate steps to compel their production. Ultimately, Nigerian medical-negligence law seeks to strike a balance between two competing interests: protecting patients against negligent medical treatment while protecting medical practitioners from liability for every unsuccessful or unfortunate medical outcome.

The decisive question is therefore not simply whether something went wrong, but: Whether the healthcare provider, in the circumstances of the particular case, failed to exercise the reasonable care and skill expected of a competent medical practitioner and whether that failure caused the injury complained of. Where the answer is established on the balance of probabilities, the law will recognise the resulting liability.

FOOTNOTES

1. UTB (Nig) Ltd v Ozoemena (2007) 3 NWLR (Pt 1022) 448, 466–467.
2. Ojo v Gharoro (2006) 10 NWLR (Pt 987) 173 (SC).
3. ibid.
4. UTB (Nig) Ltd v Ozoemena (2007) 3 NWLR (Pt 1022) 448.
5. Ojo v Gharoro (2006) 10 NWLR (Pt 987) 173 (SC).
6. University of Ilorin Teaching Hospital v Abegunde (2013) 2 NWLR (Pt 1338) 319 (CA).
7. Ojo v Gharoro (2006) 10 NWLR (Pt 987) 173 (SC).
8. Evidence Act 2011, ss 88–90.
9. Bakari v Ogundipe (2021) 5 NWLR (Pt 1768) 1 (SC).
10. Ojo v Gharoro (2006) 10 NWLR (Pt 987) 173 (SC).
11. University of Ilorin Teaching Hospital v Abegunde (2013) 2 NWLR (Pt 1338) 319 (CA).

Written Job Joseph DL, LL.B (Hons) ABU ZARIA.