CHAPTER TWO

2.0 LITERATURE REVIEW, CONCEPTUAL FRAMEWORK, AND THEORETICAL

FRAMEWORK

2.1 Literature Review

A fundamental idea in Common Law is the law of torts. It is predicated on the idea that
injury cases must have a remedy.1 According to Kodilinye, a tort can be defined as;

a civil wrong involving a breach of a duty fixed by the law,

such duty being owed to persons generally, and its breach
being redressable primarily by an action for damages.2
In a similar tone, Salmond defined tort as:

A civil wrong for which the remedy is a common law action

for unliquidated damages, and which is not exclusively the
breach of contract or the breach of trust or other merely
equitable obligation.3
According to Winfield, tortious culpability results from violating a duty that is principally
established by law; this duty is owed to people in general, and the breach can be remedied
through an action for unliquidated damages.4

Based on the principles given above, a tort is defined as a violation of a legal civil duty owed
to all people, typically remedied by an award of unliquidated damages, an injunction, or
another suitable civil remedy.

According to Ese Malemi, the goal of tort law is to outlaw torts and, in cases when they are
committed, to offer a remedy in the form of damages or other suitable relief. 5 The many
wrongs addressed by tort law include trespassing, malicious prosecution, negligence,
nuisance, defamation, fraud, vicarious liability, the Rylands v. Fletcher rule, occupiers’
liability, and more. But for this subject, we’ll be concentrating on negligence.

1 Susmita Mandal, Jurisprudential Analysis of the Tortious Liability of Companies

<[Link]
Y_OF_COMPANIES> accessed 11 March 2026.
2 Gilbert Kodilinye, Nigerian Law of Torts (Sweet & Maxwell, Ibadan, Nigeria, 1982).
3 John William Salmond, and Heuston on the Law of Torts (20th ed., Universal Law Publishing, 1997).
4 Rogers, W. V. H., Winfield & Jolowicz on Tort (15th edn, Sweet & Maxwell, 1998, London, p.4).
5 Ese Malemi, Law of Tort (2nd ed., Princeton Publishing Co., Lagos, Nigeria, 2013) p4.
Black’s Law Dictionary defines Negligence as:

The failure to exercise the standard of care that a reasonably

prudent person would have excised in a similar situation; any
conduct that falls below the legal standard established to
protect others against unreasonable risk of harm, except for
conduct that is intentionally, willfully disregardful of others
rights, the doing of what a reasonable and prudent person
would not do under the particulars circumstances or the failure
to do what such a person would do under circumstances.6
Failure to uphold a duty of care is considered negligence. It directly affects whether the
necessary standard of care in this case is performed, refused, or omitted. According to Lord
Anderson B. in the Blyth v. Birmingham Waterworks Co. decision, negligence is:

…the omission to do something which a reasonable man,

guided by the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not
do.’7
Further, on the definition of negligence, Lord Wright puts it aptly:

Negligence means more than heedless or careless conduct,

whether in commission or omission; it properly connotes the
complex concept of duty, breach, and damage suffered by
the person to whom the duty was owed.8
According to Sylvester and Chkwuneye, a plaintiff must demonstrate that the defendant owed
them a duty of care, that the defendant had breached that duty of care, and that the plaintiff
was harmed as a result of the breach to prevail in a negligence action under tort law.9

It is no longer possible to ignore the complex problem of tortuous responsibility pertaining to

medical practice in Nigeria.10 It is impossible to ignore the risk that comes with working in
medicine. Given that patients are human beings with individual rights, doctors should be
6 H.C. Black and Brian Garner, Black’s Law Dictionary (Brian A Garner ed, Eleventh, Thomas Reuters 2021).
7 Bluth v Birminham Water works Co. [1856] 11 Exch. 781.
8 Iron and Coal v. Mc Mullan [1934] A.C.1.
9 Sylvester Udemezue, and Chukwunye Ojeih, ‘A Critical Analysis of the Role of Courts in Determining
Breach of Duty of Care in the Law of Torts’ (2021) MUNFLJ p. 57
<[Link]
351557889_A_Critical_Analysis_of_the_Role_of_Courts_in_Determining_Breach_of_Duty_of_Care_in_the_L
aw_of_Torts/links/64650200c9802f2f72e2a7d4/A-Critical-Analysis-of-the-Role-of-Courts-in-Determining-
[Link]?
origin=publication_detail&_tp=eyJjb250ZXh0Ijp7ImZpcnN0UGFnZSI6Il9kaXJlY3QiLCJwYWdlIjoicHVibGlj
YXRpb25Eb3dubG9hZCIsInByZXZpb3VzUGFnZSI6InB1YmxpY2F0aW9uIn19&__cf_chl_tk=VTeuq.kd8JS
TZd8JJTvEbbbeL0eZIlJ_nknu_vO3gug-1743389324-[Link]-
FeoBtrMzofvAZd2GWxA5.yAUMY4hqs6A9eKolVkj_6s> accessed 11 March 2026.
purposeful in instilling unwavering confidence in their patients and be especially sensitive to
these rights when carrying out their responsibilities to them. 11 Several works of literature deal
with medical negligence.

As defined by Black’s Law Dictionary, medical negligence is when a doctor fails to employ
the level of caution and expertise that a surgeon or doctor in the same field would use in a
comparable situation.12 Walter Scott13 claims that, based on the neighbor principle established
in Donoghue v Stevenson14 given that the patient is the doctor’s legal neighbor, it is suggested
that the doctor owes the patient a duty of care. In R v. Bateman, it was also stated that doctors
have civil liability to their patients.15
John Devereux, in his book Medical Law16, outlines the components that must be proven to
demonstrate medical negligence. They include:

a. The existence of a duty of care owed by the healthcare provider to the patient.
b. The health care provider’s violation of that obligation.
c. The patient suffered harm as a result of the duty’s violation.
d. It was fairly foreseeable what kind of harm would be done.

2.2 Conceptual Framework

2.2.1 Meaning and Nature of Tortious Liability

A breach of a legally mandated civil responsibility owed to all people is known as a tort or
tortious liability, and an award of unliquidated damages, an injunction, or another suitable

10 M. O. Izzi, ‘Tortious Liability in the Practice of Medicine in Nigeria’, Port Harcourt Law Journal
<[Link]
ACTICE_OF_MEDICINE_IN_NIGERIA/links/5cac60ab4585157bd32d36cc/TORTIOUS-LIABILITY-IN-
[Link]> accessed 11 March 2026.
11 Motunrayo Eleruweere, ‘A Literature Review on the Duty of Care in Medical Practice in Nigeria’
<[Link]
ACTICE_IN_NIGERIA_By_Motunrayo_M_Eleruweere_LL_B_Unversity_of_Lagos_> accessed 11 March
2026.
12 H.C. Black, and Brian Garner, Black’s Law Dictionary (Brian A Garner ed, Eleventh, Thomas Reuters
2021).
13 Walter Scott, General Practitioner and the Law of Negligence(1st ed., Business and Medical Publication,
1994)
14 Motunrayo Eleruweere, ‘A Literature Review on the Duty of Care in Medical Practice in Nigeria’
<[Link]
ACTICE_IN_NIGERIA_By_Motunrayo_M_Eleruweere_LL_B_Unversity_of_Lagos_> accessed 11 March
2026.
15 [1927] 19 Cr App R 8.
16 John Devereux, Medical Law: Text, Cases and Materials (Cavendish, Australia, 1997).
civil remedy typically remedies it.17 The cornerstone of tort law is the maxim Ubi jus ibi
remedium, which states that ‘where there is a right, there is a remedy.’ 18 A fundamental
premise is that there must always be a remedy for every harm.

The primary goal of torts is to give victims of harm and loss a way to get compensation. The
tort allows for the determination of culpability and the evaluation and granting of damages. 19
Tort law protects a person’s reputation, physical integrity, and interests in land and other
property. For these reasons, various torts have been created.

In its most basic form, tort is widely acknowledged as a means of allocating damages
incurred due to wrongdoing. Loss in this sense refers to the price of making up for injuries
sustained.20 This entails shifting the expense from the wounded claimant to the defendant, or
typically the defendant’s insurance provider. Ultimately, the cost will fall on everyone who
purchases insurance or raises the price of things to pay for insurance. The process is
challenging to complete and comes with high administrative costs, which are mirrored in the
tort system’s overall cost. There are also unspoken issues with the system, like the
psychological challenges claimants have while interacting with attorneys and the legal
system, as well as practical issues like claim funding, which could result in many people who
are entitled to compensation never getting it. It has been proposed that there are more
effective and less costly ways to handle this loss distribution than using litigation.21

In essence, the law of torts shields one’s property and personal interests from injury caused
by others. Everyone has an obligation to respect other people’s interests. The law of torts
assigns blame and provides damages or other suitable remedies when someone interferes with
another person’s interests without a valid reason or excuse. 22 In tort law, a person has several
primary remedies at their disposal, including:23

1. Award of damages, that is, financial compensation24

17 Law of Torts - Nature and Functions <[Link]

functions> accessed 11 March 2026.
18 Nature and Definition of Tort <[Link]
[Link]> accessed 11 March 2026.
19 Law of Torts - Nature and Functions <[Link]
functions> accessed 11 March 2026.
20 Ibid.
21 Ibid.
22 Ese Malemi, Law of Tort (2nd ed., Princeton Publishing Co., Lagos, Nigeria, 2013) p6.
23 Ibid.
24 Shugaba v. Minister of Internal Affairs & Ors [1981] 2 NCLR 459.
2. Injunction and or;

3. Any additional remedy, such as a specific restoration of a chattel that the plaintiff has been
deprived of, or an order to reduce a nuisance, and so forth

2.2.2 Negligence
Among the most significant and prevalent torts in the law is negligence, which is derived
from the word ‘neglect.’25 The violation of a duty of care that results in harm to another
individual is known as negligence. The purpose of the negligence tort is to compensate for
damage caused by another person’s carelessness. However, not every instance of carelessness
or negligence results in a valid tort claim. 26 Therefore, not every act of carelessness qualifies
as actionable negligence.

Lord Wright in Lochgelly Iron & Coal Co v McMullan27 explained negligence thus:

In strict legal analysis, negligence means more than heedless or

careless conduct, whether in omission or commission: it properly
connotes the complex concept of duty, breach, and damage
suffered by the person to whom the duty was owing.
Also, Anderson B., in the case of Blyth v Birmingham Water Works Co.28 in defining
Negligence, it is stated thus:

Negligence is the omission to do something 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.
Moreso in the case of Odinaka v Moghalu, Akpata JSC described negligence thus:

Negligence is the omission ... to do something which a reasonable

man, under similar circumstances, would do or the doing of
something which a reasonable and prudent man would not do. 29
Negligence is the violation of a duty of care that harms another individual, typically referred
to as the plaintiff or claimant. Negligence occurs when someone fails to uphold their duty of
care, causing harm to another individual. Negligence is when someone else is harmed

25 Ese Malemi, Law of Tort (Revd ed., Princeton Publishing Co, 2013)284.
26 Ibid.
27 [1934] AC 1 at 25.
28 [1956] Ex 781 at 784.
29 [1992] 4 NWLR pt. 233, p.1 at 15 SC.
because due care was not taken. To put it another way, negligence is when someone violates
their duty of care and causes harm to another person.

Except in cases where the res ipsa loquitur doctrine is applicable, a plaintiff must demonstrate
the three necessary components of carelessness to prevail in a negligence claim:

a. That the defendant owed a duty of care to the plaintiff;

b. That the defendant breached the duty of care; and

c. The plaintiff suffered damage as a result of the breach.

The action will typically fail if the plaintiff cannot prove any of these components of
negligence, unless the doctrine of res ipsa loquitur applies, in which case the plaintiff is
typically exempt from the burden of proof. An item that speaks for itself is said to be res ipsa
loquitur. The carelessness is evident and speaks for itself, to put it another way. The burden
of proof switches to the defendant in cases where the concept is applicable to refute the
plaintiff’s claims of carelessness.

In the case of Ojo v Gharoro,30Negligence has been defined as a flexible concept that must be
applied to the broadest range of human circumstances and issues. In other words, it indicates
that a reasonable individual with the same status, social standing, or qualifications would not
have behaved in the same way in similar circumstances.31

2.2.3 DONOGHUE V. STEVENSON

The House of Lords acknowledged negligence as a separate tort in the Donoghue v.
Stevenson case32 in 1932. In this instance, a man purchased a bottle of ginger beer made by
the defendant from a store. After drinking it, his lady friend fell unwell. They had no idea that
the container included the decayed remains of a snail. The dangerous material was found
because the bottle was opaque until the woman was refilling her glass. Since her friend, not
herself, purchased the beer, the woman lacked privity of contract and so had no legal basis to
sue the producer or the merchant. As a result, she filed a lawsuit under the tort of negligence,
arguing that the maker had violated her duty of care as a customer. With Buckmaster L. and

30 [2006] LPELR 2383 (SC).

31 Ighreriniovo v S.C.C. Nigeria Ltd & Ors [2013] LPELR , Kabo Air Ltd. v Mohammed [2015] 5 NWLR (Pt.
1451) 38
32 [1932] AC 562
Tomlin L. dissenting, the House of Lords voted in favor of Mrs. Donoghue in a 3-2 majority
decision led by Lord Atkin.

According to the House of Lords, the beer maker was accountable to the plaintiff customer.
In this decision, the court determined that, first, carelessness is a separate and distinct tort;
second, a duty can be created without a contractual relationship; and third, manufacturers
have a duty to the customers they aim to serve. The legal foundation for contemporary
negligence law was established by the Donoghue v. Stevenson ruling, which made it
noteworthy. In Donoghue v. Stevenson, the notion of duty of care, when it is due and when
liability will follow for its violation, was established. The legal obligation to use caution so
that one’s actions do not cause harm to another is known as the duty of care. Lord Atkin
defined the duty of care in this instance, including when it existed and to whom it might be
owed. In his well-known quote:

The liability for negligence ... is no doubt based upon a general public
sentiment of moral wrongdoing for which the offender must pay. But
acts or omissions which any moral code would censure cannot in a
practical world.... give a right to every person injured by them to
demand relief. In this way, rules of law arise which limit the range of
complainants and the extent of their remedy. The rule that you are to
love your neighbour became in law, you must not injure your
neighbour; and the lawyer’s question Who is my neighbour? Receives
a restricted reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure
your neighbour. Who, then, in law, is my neighbour? The answer
seems to be persons who are so closely and directly affected by my
acts that I ought reasonably to have them in contemplation as being so
affected, when I am directing my mind to the acts or omissions which
are called in question.
The case of Donoghue v Stevenson33 determined that the claim will be successful if the
plaintiff can demonstrate the three components of negligence, duty of care, breach of duty,
and damage.34 It also established that there is a responsibility of care if the neighbour concept
applies. The neighbour principle, which is based on the biblical account of the good
Samaritan, says that there is a duty of care for us if a lack of care in our actions can do injury
to any individual, wherever in the world. 35 Since our negligent behavior will inevitably draw
that person closer to us and make him our neighbor, we must take him into consideration and
exercise caution in our behavior, even if he lives far away. It is important to be mindful of his

33 [1932] UKHL 100.

34 Ese Malemi, Law of Tort (Revd ed., Princeton Publishing Co, 2013)292.
35 Ibid.
safety when he is close to us due to our carelessness or reckless behavior. As a result, the
neighbor principle is sometimes referred to as the nearness or proximity doctrine. Therefore,
even though he is at the end of the world, we must take precautions for his safety since he is
our neighbor, and everyone who our actions could harm is close to us. The duty of care and
the neighbor principle are predicated on the reasonable foresight of a typical, prudent
individual. The duty of care is a prerequisite for a negligence claim under the neighbor
principle, but it is not always enough to ensure a successful outcome.

Additionally, the ruling broadened the definition of tort law to include injury caused by faulty
goods. It created the stringent responsibility principle, which imposes strict liability on
producers for careless, defective products.36 This decision established the now-known
premise that serves as the foundation for negligence. It also established manufacturers’
obligation to customers with whom they did not have a direct contractual relationship. It was
determined that a successful negligence claim does not depend on the existence of a contract
or privity of contract.37 It also established that if the plaintiff can demonstrate the three
components of negligence, duty of care, breach of duty of care, and damage, the claim will be
successful. It proved that if the neighborhood principle is applicable, care is responsible.

2.2.4 Medical Negligence

Medical negligence is defined as an action or inaction by a healthcare professional that falls
short of the recognized standard of care and causes harm or death to the patient.38 Therefore,
medical negligence is defined as a medical practitioner’s failure to use reasonable skill and
care when treating a patient. Suppose a doctor treats a patient carelessly, harming them or
worsening their pre-existing condition. In that case, the patient may file a negligence action
against the doctor and seek damages for the harm they have endured.39
Legally speaking, medical negligence is a subset of professional negligence, a subset of the
broader notion of negligence that pertains to instances in which a doctor who has positioned
themselves as possessing unique expertise and skill fails to fulfill their obligation to care for
their patients. According to Lord Hewart CJ in R v. Bateman

If a person holds himself out as possessing special skill and

knowledge and is consulted as possessing such skill and

36 Donoghue v Stevenson [1932] AC 562.

37 Negligence <[Link] accessed 13 March 2026.
38 F.N. Chukwuneke, ‘Medical Incidents in Developing Countries: A Few Case Studies from Nigeria’ (2015)
18 (7) Niger J Clin Pract. 20–24 <[Link] accessed 13 March 2026.
39 F Emiri, Medical Law and Ethics in Nigeria (Malthouse Press Ltd, Lagos, 2012) p 273.
 knowledge, by or on behalf of a patient, he owes to the person or
client to use due caution in undertaking the treatment.40
The Supreme Court meticulously outlined the legal position of the medical
practitioner in Ediagbonya v. Dumez (Nig) Ltd., stating:
Once a medical practitioner is in contact with a patient, a duty
of care exists as he discharges his duty. It does not matter at
what stage the contact is made, it could be at the
commencement of treatment where he is merely taking the
history of the patient, from this point, failure on the part of the
medical practitioner to measured up to the standard of care
expected of ordinary members of his profession will amount to
a breach of duty of care.
The law will hold the medical practitioner liable for any injury
resulting from want of that degree of knowledge of skill
ordinarily possessed by other members of the professional com
m unity in good standing or for failure to use reasonable care
and diligence in the practice of his profession and also for his
failure to exercise his best judgment in the treatment of his
patient.41
The general rules apply when determining whether a doctor has violated their duty of care. 42

a) The following components must be proven in a medical negligence action.43

b) The existence of a duty of care;

c) The medical professional’s failure to uphold this duty of care;

d) The patient’s subsequent harm brought on by the duty violation; and

e) Causation, a connection between the alleged conduct and the resulting damages.
Practically speaking, a delayed or erroneous diagnosis, improper therapy, or surgical errors
are just a few examples of medical neglect.44

40 [1925] ALL, ER p 45 at 48.

41 [1986] 3 NWLR pt 31 p. 753 SC.
42 B K Dey,’ Medical Negligence: An Overview’, <[Link]
DEPT/Downloads/Medical_Negligence_An_Overview.pdf> accessed 13 March 2026.
43 Selbyen Oluokun, ‘Analysis of Medical Negligence in Nigeria: Challenges and Way Forward’ Journal of
Commercial and Property Law p.131-13 <[Link] accessed 13
March 2026.
44 Ibid.
2.2.5 Essential Elements of Tort in Medical Practice
1) Duty of Care: The patient must be owed a legal obligation of care by the healthcare
provider. When a doctor-patient relationship is formed, a healthcare provider willingly offers
medical support or treatment, and this duty is usually established. Under this element, Lord
Atkin, in Donoghue v Stevenson,45 created the ‘neighbour principle’ which states that you
should love your neighbor and refrain from hurting them. So, who is my neighbor? Any
individual anywhere in the world whose actions or inactions are likely to be impacted by my
actions or inactions is considered my neighbor. The court-developed concept of reasonable
foreseeability, essential in establishing a duty of care, goes hand in hand with the neighbor
principle. A responsibility is due if injury to a specific plaintiff was reasonably foreseeable.
Outlining who qualifies as a ‘neighbor’ in Lord Atkin’s terminology aids in defining the
duty’s parameters.

2. Breach of Duty: The plaintiff has to prove that the medical practitioner violated the
patient's duty of care.46 This indicates that the healthcare provider did not provide the level of
care that would have been expected of a professional with a reasonable level of competence
and expertise in the same situation. What a reasonable healthcare provider with comparable
education and experience would have done in the same circumstance is considered when
determining the standard of care.

The ‘Bolam test’ is a pertinent criterion that the court created to ascertain if a duty has been
breached and is used in medical negligence proceedings. It evaluates whether the defendant
physician behaved in accordance with the norms of a responsible group of experts in the
same field. It is pertinent to the presence of a duty of care (Bolam set the standard) and
violating that responsibility (should the standard be broken).

In Bolam v Friern Hospital Management Committee ,47 Mr. Bolam, a volunteer patient at
Friern Hospital, gave his permission to receive electroconvulsive treatment. His body was not
restrained during the treatment, though, and no muscle relaxant was given to him. He thus

45 [1932] AC 562.
46 O.D. Michael, ‘Understanding the Theoretical and Legal Foundations of Medical Negligence Law in
Nigeria’ (2024) SSRN Electronic Journal
<[Link]
GAL_FOUNDATIONS_OF_MEDICAL_NEGLIGENCE_LAW_IN_NIGERIA/link/
6607525ab839e05a20a9957b/download?
_tp=eyJjb250ZXh0Ijp7InBhZ2UiOiJwdWJsaWNhdGlvbiIsInByZXZpb3VzUGFnZSI6bnVsbCwic3ViUGFnZS
I6bnVsbH19> accessed 14 March 2026.
47 [1968] 2 WLR 422.
suffered severe injuries, including acetabular fractures, as a result of his savage thrashing.
Although Mr. Bolam claimed negligence in his compensation complaint against the Friern
Institution Management Committee, the jury favored the defendant institution. The court
ruled that they had not violated any duty of care since they had not been careless in their
treatment delivery, considering the common medical views on what was appropriate in
electroshock.

The theory of ‘Res ipsa loquitur,’ which translates to ‘the thing speaks for itself,’ was also
introduced by the court under this aspect. It can be used when the very nature of an injury or
accident implies negligence.48 It places the weight of proof on the defendant to show they
were not careless, implying a duty violation because of the events that led up to the incident.
In Mahon v Osborne,49 where a doctor left cotton swabs in his patient's abdomen during
surgery, the court used the Res ipsa loquitur concept. It was determined that the doctor had
flagrantly violated his duty of care.

3. Causation: The plaintiff must demonstrate a direct link between the patient’s injuries and
the healthcare provider’s negligence. 50This entails proving that the duty violation directly
caused the patient’s damage or deteriorated condition or was a significant contributing factor.
The court also established the ‘But for Test,’ which is used to prove causality, to clarify and
simplify some of the nuances surrounding the issue. It asks if the harm would have happened
if the defendant hadn’t done something. A judgment of causation would be supported if the
injury had not happened but for the defendant’s actions.

48 O.D. Michael, ‘Understanding the Theoretical and Legal Foundations of Medical Negligence Law in
Nigeria’ (2024) SSRN Electronic Journal
<[Link]
GAL_FOUNDATIONS_OF_MEDICAL_NEGLIGENCE_LAW_IN_NIGERIA/link/
6607525ab839e05a20a9957b/download?
_tp=eyJjb250ZXh0Ijp7InBhZ2UiOiJwdWJsaWNhdGlvbiIsInByZXZpb3VzUGFnZSI6bnVsbCwic3ViUGFnZS
I6bnVsbH19> accessed 14 March 2026.
49 [1939] 1 All ER 535.
50 O.D. Michael, ‘Understanding the Theoretical and Legal Foundations of Medical Negligence Law in
Nigeria’ (2024) SSRN Electronic Journal
<[Link]
GAL_FOUNDATIONS_OF_MEDICAL_NEGLIGENCE_LAW_IN_NIGERIA/link/
6607525ab839e05a20a9957b/download?
_tp=eyJjb250ZXh0Ijp7InBhZ2UiOiJwdWJsaWNhdGlvbiIsInByZXZpb3VzUGFnZSI6bnVsbCwic3ViUGFnZS
I6bnVsbH19> accessed 14 March 2026.
In the case of Barnett v Chelsea & Kensington Hospital Management Committee,51 the ‘but-
for’ test was used to establish causation in a medical malpractice case. In this instance, a guy
called George Barnett consumed arsenic and died as a result. The key question was whether
his death was due to the hospital’s incompetence. The situation was that Barnett complained
of stomachaches and vomiting when he arrived at the hospital. Without conducting an
examination, the hospital’s physician diagnosed him with gastroenteritis and sent him home.
Barnett, however, passed away from arsenic poisoning later that evening.

Although the hospital was negligent for not diagnosing the arsenic poisoning, the ‘but-for’
test was crucial in proving causality. In this instance, the ‘but-for test asked if Mr. Barnett
would have survived if the hospital had not identified and treated his arsenic poisoning. The
court concluded that it was too late to save him, even if the hospital had accurately
recognized the poisoning. Therefore, the ‘but-for’ test indicates that the hospital's
incompetence was not the immediate cause of his death.

4. Damages: The plaintiff must demonstrate that the healthcare professional's negligence
caused them to experience genuine hurt or damage. This can include any negative effects
directly brought on by the negligence, such as physical pain, emotional distress, additional
medical costs, lost income, or other undesirable outcomes. The ‘Remoteness of Damage’ test
is a specific principle that the court has established to ascertain the extent of damage.
This test aids in determining the extent of the defendant’s liability by evaluating whether the
plaintiff's damages were predictable at the time of the negligent act. The ‘eggshell skull’ rule
is another pertinent principle that emphasizes that healthcare providers bear full responsibility
for the harm caused by their negligence, even in cases where the patient has pre-existing
conditions or susceptibilities that make them more susceptible to harm.

A related case is that of Smith v Leech Brain & Co. Ltd,52 although it is not a medical
negligence case, it is a noteworthy illustration of the ‘eggshell skull’ rule. An employee with
a pre-existing malignant condition was at issue in this instance. The employee died as a result
of his condition being worsened by a metal splinter brought on by the defendant’s negligence.
Even though the plaintiff's pre-existing condition contributed to the severity of the harm, the
court determined that the defendant was responsible for the full repercussions of their
negligent act. A situation where a patient with a known cardiac disease has a procedure and,

51 [1968] 2 WLR 422.

52 [1962] 2 QB 405.
as a result of medical negligence, a complication develops that has more serious
repercussions than anticipated could be considered from the perspective of medicine. Since
the ‘eggshell skull’ rule emphasizes culpability for the whole level of injury produced by
negligence, independent of the patient’s preexisting vulnerabilities, the healthcare
professional would probably be held accountable for the worsened harm.
2.2.6 Categories of Medical Torts

Medical negligence claims can arise from a wide range of circumstances, such as when a
physician fails to warn a patient that a prescription medication may cause heart failure or
leaves a sponge in the patient’s body following surgery. Nonetheless, it might fit into one of
these groups:

1. Failure to remove foreign objects from a patient’s body: In Nigeria, it is common for
medical personnel to perform procedures on patients while unintentionally leaving swabs,
surgical gloves, sponges, or other instruments in place. This error may result in infections or
further damage. In situations like this, the surgeon who performed the procedure could be
held liable for medical malpractice.

In the case of Ojo v Gharoro and Ors,53 the defendant/respondent diagnosed the plaintiff
appellant with a growth in her Fallopian tube, and the plaintiff had surgery. Post-surgery, she
reported abdominal pain, and an X-ray revealed a broken needle in her abdomen. Because the
presumption of negligence was rebutted because the necessary medical procedures were
followed, and it was reported that a piece of the needle broken inside her stomach was not
found, the court refused to award damages. Nevertheless, the appellant filed a lawsuit against
the defendant/respondents, seeking special and general damages for negligence. Additionally,
the court noted that the first respondent’s evidence was received correctly and was not
hearsay.

2. Wrongful Treatments: There are several types of inappropriate therapy, and medical
professionals must use caution when caring for patients. Instances include prescribing
excessive dosages, giving improper injections, or giving the wrong drug. Patients harmed due
to a medical professional’s error are entitled to compensation through legal action.

In the case of University of Nigeria Teaching Hospital Management Board and Others v
Hope Nnoli,54 the only certified chemist at U.N.T.H., Mr. Hope Nnoli, had an untrained intern
53 [2006] 10 ( PT 98) SC 173.
54 [1994] 8 NWLR (Pt. 363) at 407-408.
named Mr. Nwuzor who made chloroquine syrup, which killed children between the ages of
one and four. Although the court later reinstated the respondent because her employment was
supported by statute, the provisions of Section 9(1) of the University Hospitals
(Reconstitution of Boards, etc.) Decree No. 10 of 1985 were not followed in her removal. She
was not given a fair hearing, subsequent investigations by the Teaching Hospital’s
Management Board found that Mr. Nnoli and Mr. Nwuzor were liable for negligence.

3. Delay or Failure to Attend to a Patient: Medical negligence may arise from a healthcare
provider’s inability to immediately and appropriately attend to a patient’s requirements. In
the case of Olowo v Nigerian Navy,55 A Nigerian Navy medical professional was found guilty
of failing to examine a patient on time, which resulted in the loss of the patient’s womb and
pregnancy. Similarly, in the case of Igbokwe v UCH Board of Management,56 a lady who was
hospitalized for postpartum psychosis died tragically after jumping from a fourth story on the
same day she gave birth, and the hospital was held accountable for her lack of thorough
monitoring.

4. Incorrect Diagnosis: Medical professionals must use reasonable skill and care when
examining patients and making correct diagnoses. Medical professionals may be held
accountable for medical negligence if they diagnose incorrectly. In the case of University of
Ilorin Teaching Hospital v Akilo, 57 It was determined that a medical professional working for
the appellant would be deemed negligent if they misdiagnosed fractures as dislocations or
dislocations as fractures as a result of inadequate care and skill, which led to treatment errors.
In De Freville v Dill,58 A doctor was held accountable for medical malpractice after
incorrectly declaring a man mad while he was actually of sound mind.

5. Failure to Ascertain Patient’s Medical History: A thorough medical history is necessary

for a doctor to diagnose or treat a patient. Failing to do so can be considered negligence by
the healthcare professional.59 It’s important to understand that collecting medical history is a
continual commitment. In the case of Chin Keow v Government of Malaysia,60 if a doctor

55 [2011] LLJR-SC.
56 [1961] WNLR 173.
57 [2002] FWLR (Pt.28) 2286.
58 [1927] 96 LJKB 1056.
59 D. Dennis, ‘The Curious Case of Medical Negligence in Nigeria’, (2014) the International Journal of Indian
Psychology, p.139.
60 [1984] 1 WLR 634.
failed to ask about a patient’s medical history, it was determined that he had engaged in
negligence because he would have learned of the patient’s penicillin allergy if he had.

6. Failure to Obtain Patient’s Consent: In general, obtaining prior consent is the duty of
both physicians and hospitals for various uses, including diagnosis, treatment, organ
transplantation, and the sharing of medical records. ‘Informed consent,’ the greatest consent
standard, is obtained when the patient has been fully informed of all possible risks and
adverse effects. For patients to make an informed choice, they must be given sufficient
information regarding the suggested course of therapy. Consent can be given verbally or in
writing, inferred from the patient’s behavior, understood implicitly, provided by family
members as surrogate consent, acquired beforehand as patient advance consent, or assigned
to a designated individual as proxy consent. In the case of Okekearu v Tanko,61 a doctor was
found guilty of medical negligence after amputating a patient’s leg without getting his
permission.

7. Failure of Communication: An everyday basis for medical negligence is a failure to

communicate between a doctor and patient or between practitioners. For example, in order to
assist appropriate care, it is usual practice for a doctor or nurse to inform a colleague about
the treatment that has been delivered when transferring a patient to them.62

2.3 Theoretical Framework

Over time, the courts and academics have developed theories, doctrines, principles, and tests
pertaining to the tort of negligence, which also applies to medical negligence.

2.3.1 The Classical Theory of Negligence

This theory, sometimes called the common law or classic theory of negligence, is the basis
for lawsuits involving medical malpractice.63 According to this notion, failing to use
reasonable care or skill in performing a specified responsibility due to another individual
might be considered negligence.64 Medical negligence occurs when a healthcare provider fails
61 [2002] 15 NWLR (Pt. 791) 657 S.C.
62 Kingai Zontong, ‘An Analysis of the Proof of Medical Negligence under Nigerian Law’ (2015)
<[Link]
UNDER_NIGERIAN_LAW> accessed 14 March 2026.
63 A. Posner, ‘A Theory of Negligence’ (1972) Journal of Legal Studies
<[Link] accessed 14 March 2026.
64 O.D. Michael, ‘Understanding the Theoretical and Legal Foundations of Medical Negligence Law in
Nigeria’ (2024) SSRN Electronic Journal
<[Link]
GAL_FOUNDATIONS_OF_MEDICAL_NEGLIGENCE_LAW_IN_NIGERIA/link/
6607525ab839e05a20a9957b/download?
to deliver the proper level of care required in a particular medical circumstance, causing
injury to the patient. The classical theory is also significant since it established the framework
for the court to develop specific standards and criteria for assessing culpability. 65 The
traditional or common law theory of medical negligence highlights four components: duty of
care, breach of duty, causation, and damages.66

2.3.2 Enterprise Liability Theory of Negligence

A legal framework and methodology known as ‘Enterprise Liability Theory’ has been
developed through legal study, court rulings, and the analysis of legal professionals and
scholars. This theory’s development is a result of legal thought’s continuous adaptation to the
complexity of contemporary society, which includes the understanding that organizations or
businesses should be held responsible for the conduct of their employees.67 In negligence
circumstances, the idea broadens the scope of culpability to include organizations or
businesses that hire people whose acts cause injury, since it appropriately aligns with the
‘Respondeat superior’ precept.68 This notion becomes particularly significant in the context of
medical negligence, acknowledging that healthcare companies should be responsible for the
activities of their medical professionals. The idea tries to address the difficulties of healthcare
environments where the behaviors of several individuals contribute to patient care.

Some key elements of the Enterprise Liability in Medical Negligence include; 69

_tp=eyJjb250ZXh0Ijp7InBhZ2UiOiJwdWJsaWNhdGlvbiIsInByZXZpb3VzUGFnZSI6bnVsbCwic3ViUGFnZS
I6bnVsbH19> accessed 14 March 2026.
65 A. Posner, ‘A Theory of negligence’ (1972) Journal of Legal Studies
<[Link] accessed 14 March 2026.

66 O.D. Michael, ‘Understanding the Theoretical and Legal Foundations of Medical Negligence Law in
Nigeria’ (2024) SSRN Electronic Journal
<[Link]
GAL_FOUNDATIONS_OF_MEDICAL_NEGLIGENCE_LAW_IN_NIGERIA/link/
6607525ab839e05a20a9957b/download?
_tp=eyJjb250ZXh0Ijp7InBhZ2UiOiJwdWJsaWNhdGlvbiIsInByZXZpb3VzUGFnZSI6bnVsbCwic3ViUGFnZS
I6bnVsbH19> accessed 14 March 2026.
67 C. Keating, ‘The Theory of Enterprise Liability and Common Law Strict Liability’ (2001) Vanderbilt Law
Review <[Link] accessed 14 March 2026.
68 Ibid.
69 O.D. Michael, ‘Understanding the Theoretical and Legal Foundations of Medical Negligence Law in
Nigeria’ (2024) SSRN Electronic Journal
<[Link]
GAL_FOUNDATIONS_OF_MEDICAL_NEGLIGENCE_LAW_IN_NIGERIA/link/
6607525ab839e05a20a9957b/download?
_tp=eyJjb250ZXh0Ijp7InBhZ2UiOiJwdWJsaWNhdGlvbiIsInByZXZpb3VzUGFnZSI6bnVsbCwic3ViUGFnZS
I6bnVsbH19> accessed 14 March 2026.
 a) Scope of Employment: Medical professionals operating within the parameters of their
employment are the foundation of enterprise liability. This covers their behaviors
during surgery, patient care, and other tasks directly related to their positions within
the medical facility.
b) Control and Supervision: Establishing that the healthcare organization has authority
and oversight over its medical personnel is essential for Enterprise Liability to apply.
This may entail procedures, rules, and supervision systems to guarantee high-quality
care.
c) Deep Pockets and Vicarious Liability: This idea is consistent with vicarious
responsibility, which holds the hospital or clinic responsible for the acts of its
workers. Medical institutions frequently have more financial resources than individual
healthcare providers.70

In surgical settings, if a surgeon or member of the surgical team makes a careless mistake
during a surgery, the hospital may be held vicariously accountable. This idea applies
particularly to medical negligence involving vicarious liability in surgical teams.
i. Negligent Hiring and Supervision: Therefore, a healthcare organization may be held
accountable if it uses careless hiring or supervision practices for its medical staff or
fails to thoroughly screen a physician’s credentials who subsequently engages in
malpractice.

ii. Inadequate Policies and Training; Enterprise Liability may apply if a hospital harms
patients due to inadequate training or policy implementation. For example, the
hospital may be held accountable if patient illnesses result from a healthcare facility’s
lack of infection control procedures.

Some criticisms and challenges of this theory include the problem of attribution of control,
determining the extent of control an organization has over the actions of its medical staff can
be challenging, particularly in situations involving independent contractors or decentralized

70 C. Keating, ‘The Theory of Enterprise Liability and Common Law Strict Liability’ (2001) Vanderbilt Law
Review <[Link] accessed 14 March 2026.
decision-making.71 Secondly, complex organizational structures pose a big issue. 72 In large
healthcare systems with complex organizational structures, it may be challenging to attribute
liability to the entire enterprise, especially when decentralized decision-making is involved.

Thus, the enterprise liability theory in the context of medical negligence underscores the
interconnected responsibilities within healthcare organizations. 73 It recognizes that medical
professionals’ collective actions contribute to patient care outcomes and emphasizes the need
for institutions to bear responsibility for the quality and safety of healthcare delivery. While
legal challenges exist in attributing liability to entire enterprises, the theory is vital in
promoting accountability, patient safety, and fair compensation in medical negligence cases.

2.3.3 The Social Utility Theory of Negligence

The social utility theory of negligence is a philosophical framework that examines negligence
in the context of the benefits derived from certain activities compared to the risks involved. 74
In medical negligence, this theory weighs the societal benefits of medical practices against
the potential harms, recognizing the importance of medical advancements while addressing
the necessity of minimizing risks to patients, including the principle of informed consent and
the right to it for the patients. Some key tenets of Social Utility Theory include: balancing
benefits and risks by emphasizing a cost-benefit analysis, weighing the societal benefits of
medical procedures against the potential risks of harm to patients and advancements in
Medicine, which recognizes that medical progress often involves inherent risks. Still, those
risks may be justified if they lead to significant benefits such as improved diagnostics,
treatments, and overall healthcare outcomes.75

Application of this theory to Medical Negligence includes cases of;76

71 O.D. Michael, ‘Understanding the Theoretical and Legal Foundations of Medical Negligence Law in
Nigeria’ (2024) SSRN Electronic Journal
<[Link]
GAL_FOUNDATIONS_OF_MEDICAL_NEGLIGENCE_LAW_IN_NIGERIA/link/
6607525ab839e05a20a9957b/download?
_tp=eyJjb250ZXh0Ijp7InBhZ2UiOiJwdWJsaWNhdGlvbiIsInByZXZpb3VzUGFnZSI6bnVsbCwic3ViUGFnZS
I6bnVsbH19> accessed 14 March 2026.
72 Ibid.
73 Ibid.
74 P. Fletcher, ‘Fairness and Utility In Tort Theory’ (1972) Harvard Law Review
<[Link]
8f0ee671079386bcf59754c6326d1435151e9db9> accessed 14 March 2026.
75 Ibid.
76 O.D. Michael, ‘Understanding the Theoretical and Legal Foundations of Medical Negligence Law in
Nigeria’ (2024) SSRN Electronic Journal
<[Link]
 a. Experimental Treatments and Research: The social utility theory is evident in
cases involving experimental treatments or medical research where there may be
uncertainties and risks. If a medical professional is researching to advance medical
knowledge and potential treatments, the theory may be applied to justify certain
risks associated with the research. However, this does not absolve researchers
from minimizing risks and obtaining informed consent.

b. Emerging Medical Technologies; In cases involving cutting-edge medical

technologies, the theory acknowledges that these innovations may carry risks.
For example, if a new surgical technique is introduced, the potential patient
benefits must be weighed against the risks. If the risks are deemed reasonable in
light of the possible benefits, the theory supports the social utility of adopting such
advancements.

c. Informed Consent is a principle philosophically grounded in the social utility

theory of negligence. The social utility theory involves a careful balance between
the benefits derived from medical practices and the potential risks to individuals.
Informed consent plays a pivotal role in this balance by ensuring individuals are
informed about the risks associated with a particular medical procedure. This
allows patients to make decisions based on understanding potential harms and
benefits.

Some criticisms and challenges of this theory relate to the subjectivity involved in balancing
benefits and risks.77 Different individuals or groups may have varying perspectives on an
acceptable balance. Secondly, while the theory acknowledges the necessity of risks in
medical practices, it does not diminish the importance of obtaining informed consent. As a
matter of striking a balance, patients still have a right to be informed about potential risks,
and their consent remains crucial, but achieving this balance has been difficult. 78

GAL_FOUNDATIONS_OF_MEDICAL_NEGLIGENCE_LAW_IN_NIGERIA/link/
6607525ab839e05a20a9957b/download?
_tp=eyJjb250ZXh0Ijp7InBhZ2UiOiJwdWJsaWNhdGlvbiIsInByZXZpb3VzUGFnZSI6bnVsbCwic3ViUGFnZS
I6bnVsbH19> accessed 14 March 2026.
77 Ibid.
78 Ibid.