COVID-19 and medical liability in Nigeria: Where lies health workers’ immunity?

BY KAIGAMA MUSTAPHA

Nigeria is the most populous black country in the world with over 200 million people and its population is on the rise. As projected by Census Bureau of the United States, Nigeria’s population  will surpass that of the United States in 2047 with projections to reach 379.25 million. With these numbers, Nigeria will become the third most populated country in the world (after China and India). However, reports from Nigerian Medical Association (NMA) show that Nigeria has only 40,000 doctors. This according to the World Health Organization (WHO) puts Nigeria’s physician-to-patient ratio to 4 doctors per 10,000 patients, and patients would often wait hours to be seen contrary to what is obtainable in the United States where the ratio is 26 doctors per 10,000 people and 28 doctors per 10,000 in the United Kingdom, (though there are over 5,000 Nigerian doctors in the UK according to BBC).

This and many more issues such as not meeting the 15% benchmark of annual budget of the country for the improvement of health sector as agreed upon by African leaders at the Abuja Declaration (this year, the health sector has only 4.14% of the 2020 budget which is far less than the agreed 15% benchmark)  has caused avoidable hardships and misfortunes to millions of Nigerians. 

To be candid, one of the most pestiferous issues is the constant cases of medical negligence reports by patients in the country.  Although this cannot be divorced from the issues discussed above, however, there is another angle to it. The NMA and health workers have in many cases displayed nonchalant propensity in treating their patients with some even not attending to patients at all, thereby leading to serious health complications. Because of this, some of the patients have had to resort to self-medication as their only option which is an egregious desecration of the Hippocratic oath. With the outbreak of Coronavirus, many doctors have expressed their fears with regards to the treatment of those who contracted the virus. In Italy, over 100 doctors and 30 nurses had died after they contracted virus in February. In Edo state, on the 27th of April 2020, it was reported that several doctors abandoned their duty posts over fears of contracting the virus while attending to patients.  

This has made experts, stakeholders in the health sector and activists in both developed and developing countries to call for immunity for medical practitioners during this difficult and troubling time in the world. The lingering questions are: what is medical negligence? And should medical practitioners be immune from liability emanating from Coronavirus cases? 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. According to Encyclopedia Britannica, it’s a breach  of duty by a doctor to his patient to exercise reasonable care or skill resulting in some mental, bodily or financial disability. Flowing from the above, where  a medical practitioner breach such duty, the victim has an option to either report to Medical and Dental Practitioners Disciplinary Tribunal, or to file an action in court for tortuous or vicarious liability or to report to the Police as the circumstances of a case may warrant. However, Nigerians usually do invoke the doctrine of “We leave it to God” contrary to what is obtainable in other jurisdictions such as the USA, UK, South Africa among others. 

The risk which medical practitioners and health Workers stand during this catastrophe has generated a plethora of concerns on the need for them to be immune from medical liability. The UK’s National Health Service (NHS) is projected to be liable to billions of pounds of medical negligence claims if it does not grant some form of legal immunity to medical Practitioners And health workers risking their lives during this pandemic. 

In the United States, 6 states have enacted Laws that grants broad immunity to medical practitioners. In the State of New York, the Emergency Disaster Treatment Protection Act, was enacted and it grants broad immunity to hospitals, nursing homes, physicians and nurses and other health care providers. While in Michigan, an Executive Order 2020-30 was issued by the Governor which states that under the authority of Michigan’s Emergency Management Act, health care professionals and facilities working in support of the state’s COVID-19 response will not be held liable for a person’s injuries or death, “regardless of how or under what circumstances or by what cause those injuries are sustained.” Cases of gross negligence are not covered, according to the order. Likewise in Illinois,  Executive Order 2020-19 was issued and it covers a health care professional’s or facility’s decision to cancel or postpone elective surgeries and non-emergent procedures. In addition to hospitals, medical facilities are protected under the order, it also include nursing homes, surgery and dialysis centers and government-funded health clinics. Similar laws were made in New Jersey, Connecticut and Massachusetts. 

Should Nigerian doctors be conferred with immunity just like their colleagues in the States? Different people hold varying opinions on this, while some agreed that they should be conferred with immunity from liability, others strongly think otherwise. Those calling for immunity canvassed their argument on the basis that medical practitioners And health workers are tirelessly working to save lives of thousands of patients, with some even contracting the virus, while others have died from it. It’s only fair that immunity is granted to them so that they will work without fear of hundreds of law suits during the aftermath of the COVID-19 epidemic. This, according to them, disturbs the peace of many patients. Secondly, hospitals would claim to be filled so as to protect itself from vicarious liability which will eventually cause financial loss to them and finally, immunity will also motivate medical practitioners and health workers. 

However, notwithstanding that they have advanced such reasons, I am of the firm conviction that granting immunity will not help in the fight against the virus. Rather, it will be a tool in the hands of some practitioners to accept or reject a patient as they wish, or refuse to attend to their health needs. There are people who have died from minor illnesses because they were not attended to on the presumption that they were Coronavirus patients. Opening the door of immunity will aggravate this medical negligence. 

I think that all cases should be subject to determination by the Medical and Dental Practitioners Tribunal or the Court, with each case determined based on facts and the standard of care required.

Mukhtar Mustapha Kaigama Esq is barrister and solicitor of the Supreme Court of Nigeria, and can be reached on Twitter @kaigamamustaph1