An insight into medical negligence under Nigerian jurisprudence, by Oyetola Muyiwa Atoyebi, SAN



In Nigeria, there is a troubling surge in cases of medical negligence, primarily attributed to a dearth of manpower and inadequate infrastructure within the healthcare sector.

Many Nigerians have experienced substandard care from healthcare providers, constituted by acts or omissions by medical practitioners falling below the accepted standard and leading to patient injury or death.

Despite the alarming rise in the number of victims of medical negligence, formal complaints or lawsuits for compensation remain surprisingly low.

This phenomenon is often attributed to various factors such as ignorance, financial constraints, and, in some instances, a reluctance to pursue legal recourse against the implicated medical practitioners.

The prevalence of this unethical conduct has triggered a complex inquiry into the standard of care maintained by medical practitioners, a matter that has undergone extensive judicial scrutiny, yielding responses marked by controversy.

Although the law on medical negligence finds its origins in the law of torts, its evolution beyond the typical standard of care expected in negligence cases has created challenges.

This evolution, making it more challenging to successfully establish claims against medical practitioners for negligence, has also served as a deterrent to initiating medical negligence actions.

This article will delve into medical negligence under Nigerian jurisprudence, ways to institute these actions, the onus of proof under medical negligence and the challenges surrounding medical negligence in Nigeria.

Meaning of Medical Negligence

Negligence according to the Black’s Law Dictionary, is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.

In the context of Medical Negligence, it involves the violation of a legal duty to provide care, resulting in unintended harm inflicted by the caregiver upon the patient.

Furthermore, it can be described as the failure of the medical practitioner to exercise a reasonable duty of care in the treatment of a patient.

Medical negligence under Nigerian jurisprudence

The practice of medicine in Nigeria is governed by a comprehensive framework of laws, rules, and policies, which includes but is not limited to:

The 1999 Constitution of the Federal Republic of Nigeria (as amended).

The Medical and Dental Practitioners Act of 2004.

The Criminal Code Act of 2004.

The National Health Act of 2014.

The HIV/AIDS (Anti-Discrimination) Act 2014

The Compulsory Treatment and Care for Victims of Gunshot Act of 2017.

The Rules of Professional Conduct for Medical and Dental Practitioners.

These legal instruments are further reinforced by institutional mechanisms tasked with overseeing medical practice in the country.

Moreover, the legal interpretation of the right to life has extended to encompass the right to health in numerous judicial decisions.

This implies that ensuring access to healthcare services and facilities is deemed essential for the preservation of human life. Additionally, the recognition of the right to health within Chapter II of the Constitution signifies its growing significance in Nigerian jurisprudence. As a result, individuals now have the legal means to seek redress if their right to health is infringed upon, reflecting an evolving understanding within the legal system that access to healthcare is not solely a moral or ethical imperative but also a legally enforceable right under the Constitution.

Furthermore, in Nigeria, medical practitioners are subject to civil proceedings for negligence or failure to provide adequate care to patients. Negligence leading to civil proceedings may include acts such as:

Careless retention of medical equipment.

Incorrect treatment resulting from failure to conduct necessary X-rays.

Failure to fulfill professional responsibilities by visiting patients as required, among others.

These instances of negligence can result in severe consequences, including death, physical injuries, financial burdens, and emotional distress.

To establish negligence, the evidence must demonstrate that the medical practitioner failed to adhere to generally accepted standards of care, leading to physical harm to the patient.

Proof of Medical Negligence

Standard of proof

The bedrock of legal success rests upon the standard of proof in any court of law. A cause of action only assumes legitimacy when fortified by substantiated evidence whether in civil or criminal litigation and it must be discharged or satisfied.[14] The Evidence Act 2011, on whom the burden of proof lies, states that:

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side

In a medical negligence lawsuit, the onus lies on the patient-complainant to substantiate his claim against the medical doctor, rather than requiring the doctor to prove that they acted with sufficient care and skill.

Once the claimant successfully establishes the initial burden of negligence, the responsibility then shifts to the hospital and the doctor in question to substantiate their defence asserting the absence of negligence. But if the claimant fails to prove damage, the defendant will not be held liable.

The Court of Appeal, in Otti V. Excel-C Medical Centre Ltd & Anor highlighted a fundamental legal principle:

“It is rudimentary law that, to find a medical professional guilty of negligence, the situation must be such that his actions are deemed a mistake by professional colleagues, actions that fall short of the standard expected of a reasonably skillful medical professional: OJO vs. GHARORO.”

Nonetheless, an exception arises when the facts and circumstances allow a plaintiff to invoke and depend on the doctrine of res ipsa loquitur, meaning “the fact speaks for itself.”

This exception represents a deviation from the typical burden of proof in specific cases. The res ipsa loquitur plea asserts that the plaintiff’s circumstances inherently indicate a direct outcome of the defendant’s negligence. Consequently, the responsibility shifts to the defendant to rebut the presumption of negligence by demonstrating that the plaintiff’s situation could have been or was influenced by other factors. Such a plea may find more applicability in cases where the elements are purely ‘physical’ and sufficiently evident.

Requirements to prove medical negligence

In the case of DELTA STATE HOSPITALS MGT BOARD & ORS v. ONOME, the Court of Appeal held that “The Plaintiff must prove that the defendant owes or owed him a duty of care and was in breach of that duty”.

This means that the basic elements for proving negligence in tort exist in medical negligence, comprising:

A duty of care owed by the defendant to the plaintiff;

A breach of that duty by the defendant; and

Damage to the plaintiff resulting from the breach.

This underscores the fact that to successfully assert a valid cause of action in negligence, the plaintiff must not only establish the existence of circumstances giving rise to a general duty of care but also provide evidence that the harm suffered was a reasonably foreseeable consequence of the defendant’s conduct.

Who can sue and be sued under medical negligence?

Individuals directly affected by medical errors generally have the right to sue for malpractice. Exceptions exist for deceased patients or minors, allowing close relatives or guardians to pursue legal action. Medical professionals are legally bound to uphold a duty of care, and breaching this duty, resulting in harm, can lead to compensation claims. Perfection isn’t required, but a reasonable standard of care must be maintained. While each case is unique, seeking legal advice is crucial for understanding claim viability. Notably, a valid claim requires the claimant to have suffered harm due to the negligence, emphasizing the importance of reporting incidents to regulatory bodies even if a compensation claim may not be substantiated.

Expert Testimony

The Evidence Act provides a definition of an expert thus “persons so specially skilled as mentioned in subsection (1) of this section are called experts.” In the case of ANPP & Anor v. Alhaji Saidu Nasamu Usman, the Court emphasized that the determination of whether a witness qualifies as an expert is a question of fact for the court to decide.

The role of an expert witness in a medical liability case is to testify to the standards of care in a given case, and to explain how the defendant did or did not conform to those standards.

Nevertheless, the question “Is an expert witness required when proving a case of malpractice against medical practitioners?” is of utmost importance and thus receives an affirmative answer. This is because, in situations involving highly specialized areas of medical care that laypeople may not understand, the court needs to rely on expert testimony to make informed and just decisions.

The involvement of the expert witness in medical malpractice cases can take many different forms. The expert witness may be asked to evaluate the merits of a claim before legal action is filed. The expert witness may be tasked to review the medical records and provide a written opinion regarding the standard of care and any deviation from the standard of care.

Options available to victims of medical negligence in Nigeria.

The legal avenues for an aggrieved party vary across civil, criminal, and professional jurisdictions. Understanding these dimensions is crucial for both victims seeking redress and professionals navigating potential legal consequences.

Civil Jurisdiction:

Negligence, when it constitutes a tortious claim, falls under civil law. In this area of law, a victim is responsible for establishing the fundamental elements of the negligence tort in order to succeed legally.

Criminal Jurisdiction:

Negligence, in its pure form, is not inherently actionable within criminal jurisdiction. However, instances of medical negligence entangled with criminal aspects can lead to charges under the Criminal Code Act.

 In cases where medical negligence results in death, the culpable professional may face charges such as murder or manslaughter, contingent upon the circumstances.

Professional Body Oversight:

Section 15 of the Medical and Dental Practitioners Act, 2004 establishes the Medical and Dental Practitioners Disciplinary Tribunal, which maintains medical ethics and discipline within the medical profession. This tribunal serves as a recourse for victims of medical negligence seeking resolution and redress.

Under Nigerian negligence principles, not all medical errors automatically translate to medical negligence, particularly when no resulting injury or permanent damage occurs although the Medical and Dental Practitioners’ Disciplinary Committee can still take disciplinary measures against erring medical practitioners for breaching medical ethics. For individuals unable to establish a strong case of medical negligence but have been victims of medical errors, alternative options exist.

One option is to initiate professional disciplinary action against the erring doctor by filing a petition with the Medical and Dental Council of Nigeria (MDCN). The MDCN’s professional disciplinary department investigates[30] allegations of professional misconduct against a medical practitioner or dental surgeon, and if a prima facie case is established, the medical practitioner or dental surgeon may face charges before the Medical and Dental Practitioners’ Disciplinary Tribunal[31], which holds the status of a high court. In the event of a contested judgment, the doctor can appeal to the Court of Appeal.

Recommended steps towards redress

The following are administrative steps to be taken in seeking redress on medical negligence:

Report the erring medical practitioner to the Chief Medical Director of the hospital.

Report to the Medical and Dental Council of Nigeria. Your petition should be in form of an affidavit.

Write a complaint/petition to The Ministry of Health and Commissioner for Health.

Request for the patient-victim’s case file.

In the event of questionable death, request an autopsy to be conducted on the deceased body.

Contact your lawyer; who can help you determine if your case is actionable in court.

You may also contact the following for assistance:

Centre for the Right to Health (CRH)

Human Rights Protection Agencies

International Federation of Women Lawyers

National Human Rights Commission

Legal Aid Council of Nigeria

Ministry of Health

Challenges of proving actions against medical negligence

Securing Expert Witnesses: The scarcity of qualified and willing expert witnesses presents a significant challenge. Medical experts may be hesitant to testify against colleagues, hindering the development of a robust case. This most times delays the possible outcome of cases.

Settlement Pressures: Plaintiffs, facing financial or emotional stress, might accept inadequate settlements. Settlement pressures can result in cases being resolved without a comprehensive examination of merits, potentially depriving the injured party of a fair and thorough legal resolution.

Meeting the Burden of Proof: Proving negligence is challenging, especially in complex and technical medical issues. Difficulties in discharging the burden of proof may lead to the dismissal of valid claims, impacting the pursuit of justice for those harmed by medical negligence.

Consideration of Pre-existing Injuries: The defence in medical negligence cases may assert that the patient had pre-existing injuries or conditions contributing to or causing harm. Distinguishing between pre-existing conditions and alleged negligence complicates liability assessment. Establishing causation becomes challenging with pre-existing injuries, requiring clear evidence attributing harm specifically to alleged negligence rather than the pre-existing condition.


Accountability: This entails the ability to be held accountable as well as the ability to enforce one’s decision. Healthcare providers and health institutions ought to account for their decisions/actions and be prepared to face the penalties imposed on them in the event of wrongdoing when held accountable. This goes to touch all healthcare institutions, medical practitioners, as well as national governments that influence the Nigerian health system.

Thorough Monitoring of Health Facilities and Accreditation: The different national healthcare commissions responsible for health facilities regulation, licensing, and accreditation of hospitals should be on their toes while on their duties to avoid hospitals not having important equipment when needed.

Public Education & Enlightenment of Citizens: When the citizens are enlightened, they would be bold enough to challenge the infringement of their rights provided in chapter II of the CFRN 1999 even by Public Interest Litigation.


Medical practitioners in the healthcare sector may cause distress or irreversible injury to patients as a result of their actions or inactions. To show liability for negligence, the three principles of negligence must be established: a duty of care is owed, a violation of the duty of care occurred, and the harm or permanent handicap suffered as a direct result must be proven beyond a reasonable doubt. However, the inability to prove a negligence claim does not relieve a medical practitioner of penalties for medical malpractice or error. Patients can still seek legal options, such as a res ipsa loquitor plea, in which the victim’s burden of proof shifts to the medical practitioner.

Snippet:  In a medical negligence lawsuit, the onus lies on the patient-complainant to substantiate their claim against the medical doctor, rather than requiring the doctor to prove that they acted with sufficient care and skill.

Keywords: Medical negligence, actions against medical practitioners, expert witness in medical negligence.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

He can be reached at


Chikezie is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Litigation Practice.

He can be reached at

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