CHAPTER FOUR

ANALYSIS AND DISCUSSIONS

4.1 Introduction

This chapter provides a comprehensive analysis and critical discussion of the findings derived

from this study, which centers on the tortious liability of medical practitioners in Nigeria. The

chapter aims to interpret and contextualize the results of the research in light of the legal, ethical,

and medical frameworks that underpin professional accountability in the Nigerian healthcare

system. It seeks to bridge the gap between theoretical legal principles and their practical

application, especially in matters concerning medical negligence, breach of duty, and the legal

recourse available to aggrieved patients. The concept of tortious liability in medical practice

revolves around the legal responsibility that arises when a healthcare provider, through

negligence or omission, causes harm to a patient. In Nigeria, this area of law is still evolving,

with numerous challenges impeding its full realization ranging from limited patient awareness to

systemic deficiencies in legal enforcement and medical regulation. This study appraises the state

of tortious liability as it applies to medical practitioners by examining the extent to which legal

standards are upheld, the consistency of judicial decisions in negligence cases, and the overall

effectiveness of tort law in protecting patients’ rights 1. Through this lens, the research aims to

identify both the strengths and gaps in Nigeria’s legal framework and propose viable

recommendations for improving accountability and redress mechanisms within the healthcare

sector.

1
CLEEN Foundation. (2022). Patient Rights and Legal Awareness in Nigerian Hospitals: A Survey Report.
This chapter evaluates tortious liability in the Nigerian medical context, focusing on the

application of relevant case laws, statutory provisions, and insights from primary and secondary

sources, including judicial decisions, scholarly opinions, and empirical data from legal and

medical professionals. The chapter explores the extent of medical practitioners' accountability

under tort law, the effectiveness of existing legal frameworks for addressing medical negligence,

and the challenges faced by victims seeking justice. Key legal doctrines such as duty of care,

breach, causation, and damages are critically examined. Additionally, the chapter offers a

comparative analysis with other jurisdictions where medical tort law has developed more

rigorously, highlighting potential reforms and best practices that could strengthen legal

accountability in Nigeria's healthcare system. This chapter sets the stage for the reform agenda in

Chapter Five, demonstrating areas where Nigerian medical tort law succeeds and where

improvements are needed to create a more patient-centered healthcare system.

4.2 Appraisal of Nigerian Laws on Medical Malpractice

Nigeria’s framework for civil liability in health care is an intricate mosaic of common-law

doctrine and statutory enactments, none of which, taken alone, offers a complete roadmap for

patients seeking redress. Four legislative pillars are germane: the Constitution of the Federal

Republic of Nigeria 19992 (as amended), the Medical and Dental Practitioners Act

(MDPA) LFN 20043, the National Health Act (NHA) 20144, and the Consumer Protection

Act (CPA) 20195. Together they sketch sometimes only obliquely the substantive duties owed by

practitioners and the procedural avenues by which aggrieved patients may vindicate their rights.
2
Constitution of the Federal Republic of Nigeria. (1999, as amended).
3
Medical and Dental Practitioners Act, Cap. M8, Laws of the Federation of Nigeria. (2004).
4
National Health Act. (2014).
5
Consumer Protection Act, 2019 (Nigeria).
(a) Constitutional touchpoints

Although the Constitution does not expressly proclaim a justiciable “right to health,” several

provisions indirectly anchor malpractice liability. Section 33 safeguards the right to life, a

guarantee invoked in Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo 6 to

affirm patient autonomy and informed consent. Section 34 protects dignity of the person, which

courts have read broadly enough to encompass freedom from degrading medical treatment.

These clauses infuse tort adjudication with a rights-conscious flavour: a negligent act that

foreseeably endangers life or dignity is not merely a private wrong but a constitutional affront,

justifying robust remedial interpretation.

(b) The Medical and Dental Practitioners Act (LFN 2004)

The MDPA creates the Medical and Dental Council of Nigeria (MDCN) 7 and its Investigating

and Disciplinary Tribunals, endowing them with quasi-judicial power to sanction professional

misconduct, suspension, admonition, striking off. While the Act is regulatory rather than

compensatory, tribunal findings carry persuasive weight in subsequent civil suits; a doctor

disciplined for sub-standard care faces little difficulty being found negligent in tort. Conversely,

the Act’s focus on practitioner discipline means that a complainant who seeks damages must still

confront the ordinary tort hurdles in the High Court: expert evidence, cost, delay. Hence, the

MDPA supplies accountability but not the monetary relief that patients often need.

(c) National Health Act 2014

6
Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo. (2001) 7 NWLR (Pt. 711) 206.
7
Medical and Dental Council of Nigeria. (2004). Medical and Dental Practitioners Act, Cap. M8, LFN.
The NHA is Nigeria’s first attempt at a comprehensive health statute. Section 23 codifies a “duty

of health establishments to provide emergency care”, making refusal to treat a life threatening

condition an offence and a civil wrong. Section 26 mandates informed consent (save for

emergencies or statutory exceptions), while Section 27 grants patients access to their medical

records, a critical evidentiary tool in negligence litigation. Crucially, the Act’s Part III establishes

quality assurance committees in every public facility, tasked with investigation of adverse

events; their reports can crystallise facts long before trial. Yet enforcement remains patchy: many

facilities have not operationalised these committees, and regulations contemplated by Section 51

(to spell out malpractice procedure and compensation schemes) are still awaited. Thus, the NHA

offers a rights catalogue without a robust enforcement engine8.

(d) Consumer Protection Act 2019

By defining “services” to include professional health services, the CPA places medical treatment

squarely within consumer protection jurisdiction. Section 133 empowers the Federal Competition

and Consumer Protection Commission (FCCPC) 9 and consumer courts (established under

Section 149) to award redress for “defective services” without the formalities of orthodox tort

claims. Patients may therefore bypass evidentially demanding High Court malpractice suits and

pursue administrative remedies, refund of fees, compensation, public apology, through a faster,

less costly channel. Nonetheless, damages under the CPA are typically modest; serious personal

injury claims will still gravitate to the civil courts where quantum is unrestricted 10.

(e) Interaction and lacunae

8
National Health Act. (2014).
9
Consumer Protection Act. (2019).
10
Ibid.
These statutes coexist with the common law tort of negligence, which Nigerian courts continue

to treat as the primary cause of action for medical injury. The legislative innovations supplement

but do not displace that doctrinal core. Two gaps, however, remain conspicuous. First, Nigeria

lacks a dedicated medical injury compensation fund or no fault scheme, unlike South Africa’s

proposed model or the UK’s NHS Resolution. Victims must shoulder evidential burdens that

many cannot meet. Second, there is no uniform statute of limitations tailored to malpractice;

claims fall under the general Limitation Law of each state (often six years), producing

uncertainty over accrual dates in latent injury cases.

(f) Emerging reform proposals

Bills periodically tabled in the National Assembly seek to mandate compulsory professional

indemnity insurance, introduce mediation windows before suit, and create a patient safety

authority empowered to investigate systemic failures. None has yet secured passage, but

momentum is growing, fueled by high profile obstetric and surgical mishaps. Meanwhile, the

FCCPC and MDCN signed a 2023 memorandum to share data on complaints, signaling an

embryonic move towards integrated enforcement11.

4.3 Analysis of the Nigerian Medical Association (NMA) Code of Ethics

The Code of Medical Ethics in Nigeria, promulgated by the Medical and Dental Council of

Nigeria (MDCN) and endorsed by the Nigerian Medical Association (NMA), is the single most

authoritative articulation of professional expectations for physicians and dentists in the

country. Although the instrument is categorised as “soft law”, its normative force is hardened by

sections 15–19 of the Medical and Dental Practitioners Act LFN 2004, which empower the
11
Ibid.
Council’s Disciplinary Tribunal to impose sanctions for any conduct “inconsistent with the ethics

of the profession.” Consequently, a doctor who violates the Code not only risks regulatory

penalties admonition, suspension, or erasure from the register but also faces an evidential

handicap in subsequent civil litigation, because courts routinely treat established ethical breaches

as persuasive proof of negligence.

4.3.1 Substantive obligations embedded in the Code

The professional conduct of medical practitioners in Nigeria is not only guided by general

principles of tort law but also by a set of substantive ethical and legal obligations codified in

professional regulatory frameworks. Chief among these is the Code of Medical Ethics in Nigeria,

issued by the Medical and Dental Council of Nigeria (MDCN) 12, which serves as the principal

instrument regulating medical practice in the country. This Code sets out comprehensive

standards of care, ethical responsibilities, and professional duties expected of all registered

medical and dental practitioners. It defines the scope of acceptable conduct and offers clear

guidelines aimed at protecting patient welfare, promoting accountability, and preserving public

trust in the medical profession. Importantly, these substantive obligations have direct

implications for tortious liability, as breaches of the Code may serve as strong evidence of

negligence or misconduct in civil claims. In this regard, the Code does not merely function as a

regulatory tool but also intersects significantly with legal standards used by courts in determining

liability. The obligations outlined therein reflect a fusion of legal expectations and professional

ethics, forming a framework within which practitioners are expected to deliver competent and

conscientious care. Below are some of the key substantive obligations embedded in the Code:

12
Ibid.
1. Fiduciary Allegiance to the Patient: The Code emphasizes that a medical practitioner’s

primary duty is to the patient, not to institutions, insurers, or employers. This fiduciary

duty is especially relevant in resource-limited settings, where decisions based on bed

space or insurance limits can be seen as unethical and negligent, especially if they expose

patients to harm.

2. Informed Consent as the Ethical Minimum: The Code requires full, clear disclosure

about a patient’s diagnosis, treatment options, and risks. Courts have emphasized that

informed consent must be comprehensible, even for rural or illiterate patients, and that

ethical breaches, like rushing consent just before surgery, can lead to tortious liability, as

seen in Edet v. University of Calabar Teaching Hospital.

3. Continuing Professional Development (CPD): The Code mandates a minimum of 20

CPD points annually to maintain licensure. Failure to meet these requirements can be

used in negligence suits, as seen in Nwachukwu v. Abia Specialist Hospital, where a

surgeon’s lack of knowledge of updated medical guidelines was deemed a breach of both

ethics and legal care standards.

4. Confidentiality and Data Stewardship: The Code requires lifelong confidentiality, with

limited exceptions. In the absence of comprehensive privacy laws in Nigeria, breaches of

confidentiality, such as unauthorized disclosure of HIV status, can lead to significant civil

liability, including claims for psychiatric injury.

5. Financial Probity and Conflict of Interest: The Code prohibits fee splitting,

undisclosed inducements, and unprofessional advertising. It also mandates written cost

estimates for elective procedures. These provisions help plaintiffs argue that conflicts of
 interest, such as choosing expensive branded drugs due to external incentives, could

constitute negligence.

4.3.2 Procedural architecture of enforcement

The procedural architecture for enforcing medical negligence claims in Nigeria begins with the

Preliminary Investigation Panel (PIP), which is responsible for evaluating initial complaints of

professional misconduct. When a complaint is made against a medical practitioner, the PIP's role

is to investigate whether there is sufficient prima facie evidence to suggest that misconduct has

occurred13. The PIP does not make a judgment on the merits of the case but rather determines

whether the matter should proceed to the Medical and Dental Practitioners Disciplinary Tribunal

(MDPDT). If the panel finds enough evidence to support the claim, the case is referred to the

MDPDT, which conducts a more formal quasi-judicial hearing. The MDPDT’s proceedings are

less formal than High Court trials, with the Tribunal not bound by strict rules of pleading. This

flexibility allows the Tribunal to admit a wide range of evidence, including expert affidavits and

hospital records14. Despite this flexibility, the Tribunal is still required to uphold the principles of

natural justice, providing both parties with a fair hearing and an opportunity to present their

cases.

The MDPDT has the authority to impose various sanctions on a medical practitioner found guilty

of professional misconduct. These sanctions include admonition, a fine, suspension (up to six

months), or striking off the practitioner from the medical register, which would effectively

13
Ibid.
14
Udokwu v. University of Benin Teaching Hospital, (2019, High Court, Benin) (Unreported).
prevent them from practicing medicine. Once a decision is made, the findings are published in

the Federal Government Gazette and on the MDCN website, ensuring transparency. If either

party disagrees with the outcome, they have the right to appeal the decision to the Court of

Appeal15. However, success rates for such appeals are typically low, as appellate courts generally

defer to the MDPDT’s findings of fact, unless there has been a procedural error or a clear breach

of natural justice. This structure ensures that the enforcement process is both efficient and fair,

allowing for appropriate accountability while respecting the rights of medical professionals.

4.3.3 Influence on tort litigation

The influence of decisions made by the Medical and Dental Practitioners Disciplinary Tribunal

(MDPDT) on civil litigation has grown significantly, particularly in the context of medical

negligence claims. Civil courts increasingly recognize the findings of the MDPDT as issue

estoppel regarding factual matters, which means that once the Tribunal has determined a

particular fact, such as whether a doctor acted below acceptable professional standards, that fact

cannot be disputed in a subsequent civil lawsuit. However, this does not extend to ultimate

liability, meaning that while the Tribunal's factual findings may shape the civil case, the court

will still independently evaluate whether the defendant’s conduct constitutes legal negligence 16.

In cases where the Tribunal finds that a doctor failed to meet professional standards, the

negligence plaintiff’s case becomes more straightforward. The plaintiff only needs to prove

causation (that the breach led to the injury) and damages (the harm suffered), effectively shifting

the burden to the defendant. The defendant must then provide evidence to prove that the breach

did not cause the injury, placing the onus on the medical professional to defend their actions.

15
Wilsher v. Essex Area Health Authority, [1987] 1 All ER 871.
16
Nigerian Judiciary. (2024). Lagos State High Court Practice Direction on Medical Negligence Disclosure.
On the other hand, even if a doctor is acquitted by the MDPDT, civil litigants may still pursue

claims for medical negligence by introducing fresh expert testimony to persuade the civil court

that, although the doctor’s actions met the ethical standards required by the Tribunal, they

nonetheless fell short of the common law standard of care. This distinction underscores the

difference between disciplinary standards and civil standards. While both sets of standards are

related to the overall performance and conduct of medical professionals, disciplinary hearings

focus more on ethical conduct and maintaining professional integrity, while civil courts

concentrate on whether the conduct resulted in tangible harm to the plaintiff 17. This

differentiation allows civil courts to address issues that may not have been fully captured in

disciplinary proceedings, ensuring that both professional accountability and patient rights are

upheld.

4.3.4 Gaps and weaknesses

Despite its comprehensive nature, the Medical and Dental Practitioners' Code of Conduct

exhibits several structural weaknesses that undermine its effectiveness in ensuring accountability

within the healthcare sector. One of the major flaws is the chronic under-resourcing of

enforcement mechanisms. Data from the Medical and Dental Council of Nigeria (MDCN)

indicates that the average time between a complaint being filed and a decision by the Preliminary

Investigation Panel (PIP) is around 18 months, followed by an additional 12 months for a verdict

from the Medical and Dental Practitioners Disciplinary Tribunal (MDPDT). Such prolonged

delays diminish the deterrent effect of the Code, as offenders are not swiftly held accountable for

their actions. This slow pace of adjudication also contributes to prolonged suffering for patients

awaiting justice, as well as a sense of impunity within the profession. Given the growing demand
17
Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo, (2001) 7 NWLR (Pt. 711) 206.
for timely and effective enforcement, critics argue for enhanced resources and a more

streamlined process to ensure that healthcare professionals are held accountable more swiftly.

A second weakness of the Code lies in its limited scope, which only covers physicians and

dentists. This is particularly problematic in cases involving multi-professional teams, such as

those in anaesthesia mishaps where nurse anesthetists may be involved. Allied health

professionals such as nurses, pharmacists, and physiotherapists are regulated by separate

councils with their own distinct codes of practice, making it difficult to address incidents that

involve multiple healthcare professionals from different regulatory bodies. This fragmentation

complicates the litigation process, especially in cases where multiple actors contribute to an

error. Finally, critics argue that the severity of the sanctions available under the Code is

insufficient, particularly in cases where the harm caused by medical malpractice is severe. For

example, a six-month suspension for a professional who has caused catastrophic harm, such as

permanent paralysis, may appear to be a disproportionate response to the gravity of the offense.

To address this, some experts suggest linking disciplinary outcomes more closely with civil

damages, ensuring that sanctions are commensurate with the level of harm caused to the patient,

thereby enhancing the Code's deterrent effect and promoting greater accountability.

4.3.5 Normative significance

Despite its structural weaknesses, the Nigerian Medical Association (NMA)18 Code remains the

de facto gold standard against which Nigerian courts assess the reasonableness of medical

practice. The Code has become a cornerstone of medical ethics and professional conduct in

Nigeria, providing a framework for the duties and responsibilities expected of healthcare

18
Ibid.
providers. It outlines comprehensive obligations, such as the necessity for robust patient consent,

continuous professional development, and conflict-free prescribing. These detailed guidelines

push the boundaries of traditional medical reasoning, guiding practitioners to adhere not just to

what is commonly done but to articulated professional ideals. By codifying these values, the

Code facilitates a shift from the often simplistic question, "Did the doctor do what his colleagues

usually do?" to a more profound inquiry, "Did the doctor act in a manner consistent with

professional and ethical standards?"

This evolution in perspective is significant, as it steers Nigerian courts away from the traditional

Bolam Test, which primarily evaluated medical negligence based on whether the doctor’s actions

were supported by a responsible body of medical opinion. Instead, it moves towards a more

principled, patient-centered approach to evaluating medical conduct, aligning more with the

Bolitho logic test. The Bolitho test, unlike the Bolam test, requires that the medical opinion be

not only supported by a responsible body of opinion but also logically sound and consistent with

the best interests of the patient 19. This shift towards a more principled and patient-focused

approach underscores a broader trend in legal and medical ethics, where the rights and safety of

patients are becoming more central in the judicial assessment of medical practices. Consequently,

the NMA Code has not only reinforced medical standards but also contributed to the

transformation of medical malpractice jurisprudence in Nigeria.

4.4 Case Law Analysis of Tortious Liability of Medical Practitioners

19
Nigerian Medical Association. (2008). Code of Ethics and Conduct for Medical Practitioners. Lagos: NMA.
 Case law plays a crucial role in shaping the understanding and application of tortious liability

for medical practitioners, particularly in the context of medical malpractice in Nigeria 20. Over the

years, numerous landmark decisions have been pivotal in defining the legal obligations of

healthcare professionals and determining how breaches of duty should be handled by courts.

These cases offer valuable insight into how negligence, breach of duty, causation, and damages

are analyzed within the legal framework governing medical practice. Additionally, case law helps

bridge the gap between legal principles and their real-world application, ensuring that patients’

rights are protected while providing a fair legal structure for healthcare providers. One of the

most significant roles of case law in the context of tortious liability is the establishment of

precedents that guide courts in determining the standard of care required in medical practice. In

Nigeria, just as in other common law jurisdictions, judicial decisions have progressively outlined

the threshold beyond which medical practitioners can be held liable for negligence. The

evolution of tort law concerning medical malpractice in Nigeria is deeply rooted in the analysis

of these landmark cases, which not only determine the elements required to establish negligence

but also highlight how courts assess the reasonableness of a medical practitioner’s conduct under

various circumstances.

Nigerian courts, while drawing upon key decisions from jurisdictions like the UK 21, have tailored

their legal approach to medical malpractice cases based on local societal, medical, and legal

needs. As such, case law has become a primary tool for interpreting statutory provisions,

understanding professional ethical standards, and clarifying the nuances of medical negligence

claims. A detailed examination of significant cases is essential for understanding how tortious

liability is enforced in the Nigerian healthcare system.

20
Ibid.
21
Bolitho v. City and Hackney Health Authority, [1997] UKHL 46.
Key Cases in Nigerian Medical Malpractice Jurisprudence

A number of key decisions in Nigerian courts have shaped the trajectory of medical malpractice

litigation, with particular focus on determining negligence, causation, and the appropriate

standard of care for medical practitioners. Through these cases, courts have refined and defined

tortious liability within the medical profession.

4.4.1 Bolam v. Friern Hospital Management Committee (1957)

The Bolam case established the influential Bolam Test, which holds that a medical practitioner is

not negligent if their actions align with a responsible body of medical opinion, even if others

disagree. This standard has become central in Nigerian medical negligence law, where courts

heavily rely on expert testimony to determine whether a practitioner met the accepted standard of

care. However, the Bolam Test was refined by Bolitho v. City and Hackney Health Authority

(1997), which added that expert opinions must also be logically sound and reasonable. Nigerian

courts have begun adopting this more critical approach, no longer accepting expert opinions

uncritically but instead assessing their logical foundation. Together, Bolam and Bolitho shape a

balanced framework in Nigeria—acknowledging medical expertise while ensuring courts can

scrutinize and hold practitioners accountable.

4.4.2 Bolitho v. City and Hackney Health Authority (1997)

In Bolitho v. City and Hackney Health Authority (1997), the House of Lords refined the Bolam

Test, which had been the standard for assessing medical negligence. The court ruled that while

medical opinions remain essential, courts must scrutinize these opinions to ensure they are
logically sound and based on established medical principles. This shift moved away from blind

deference to medical experts, promoting a more balanced approach where expert testimony must

be consistent with rational medical practices.

The ruling had a significant impact on medical malpractice cases, particularly in common law

jurisdictions like Nigeria, where courts now critically evaluate expert opinions. By combining

the Bolam Test with the Bolitho refinement, Nigerian courts ensure that medical opinions meet a

higher standard of credibility and logical consistency, fostering fairness and justice in medical

negligence cases.

4.4.3 Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001)

In Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001), the Nigerian

Supreme Court addressed the duty of medical practitioners to obtain informed consent from

patients. The case involved a practitioner who performed a procedure without adequately

informing the patient about the risks, benefits, and alternatives. The Court ruled this failure as

professional misconduct, emphasizing the patient's right to autonomy and informed decision-

making. The judgment highlighted the importance of informed consent in Nigerian tort law,

establishing that medical practitioners can be held liable not only for failing to meet the standard

of medical care but also for breaching ethical obligations. This case has since become a key

reference in Nigerian law, reinforcing the duty of medical practitioners to inform patients and

protect their rights, thus shaping the ethical framework of medical practice in Nigeria.

4.4.4 Wilsher v. Essex Area Health Authority (1987)

In Wilsher v. Essex Area Health Authority (1987), the House of Lords addressed medical

negligence in neonatal care, focusing on causation in malpractice. The claimant argued that the
failure to properly monitor a premature infant's oxygen levels led to brain damage. The central

issue was whether the failure to monitor could be directly linked to the injury, or if other factors,

such as the infant’s pre-existing health conditions, were responsible. While acknowledging a

breach of duty, the House of Lords concluded that causation could not be definitively established

due to multiple potential contributing factors.

The significance of Wilsher in Nigerian medical malpractice law lies in its emphasis on the need

for clear, direct evidence to establish causation in complex medical cases. The ruling reinforced

that, in cases where multiple factors could have contributed to the harm, negligence alone is not

enough to establish liability. Nigerian courts have since applied the Wilsher principles to

navigate causation challenges in medical negligence cases, requiring precise evidence to link the

defendant’s actions to the injury.

4.4.5 Chin Keow v. Government of Malaysia (1967)

In Chin Keow v. Government of Singapore (1967), the Privy Council ruled that hospital policies

cannot absolve medical practitioners from liability if those policies conflict with sound medical

judgment. The case involved a patient harmed by a treatment protocol mandated by hospital

policy, which was inconsistent with accepted medical practices. The court held that doctors must

exercise their professional judgment, and adherence to institutional policies that conflict with the

standard of care cannot be used as a defense against negligence.

In Nigeria, this case has influenced how courts address situations where medical practitioners

face institutional policies that contradict professional practices. Nigerian courts have used Chin

Keow to emphasize that medical practitioners' ethical obligations and professional judgment take

precedence over institutional directives. This principle ensures that patient care is not
compromised by organizational policies, especially when they conflict with medical ethics or

accepted practices. The case has reinforced the idea that the duty to provide competent, ethical

care is paramount, and healthcare providers cannot avoid liability simply by following

institutional policies that fall short of the required standard of care.

4.5 Identification of Trends and Gaps in Judicial Precedents

The evolution of tortious liability for medical practitioners in Nigeria is significantly shaped by

judicial precedents, which help to define the boundaries of medical negligence, breach of duty,

and causation in healthcare settings. A careful analysis of case law reveals several key trends in

how Nigerian courts approach medical malpractice claims 22. At the same time, there are notable

gaps in the judicial precedents that need addressing to ensure the effective application of justice

and the protection of patients' rights.

4.5.1 Trends in Judicial Precedents

1. From Deference to Deliberation: The Changing Role of Expert Testimony

For decades Nigerian judges applied the Bolam v. Friern Hospital23 paradigm almost

mechanically: once a “responsible body” of specialists endorsed the defendant’s conduct,

negligence was unlikely to be found. Recent decisions, however, show a decisive movement

toward judicial interrogation of expert opinion rather than blind acceptance.

Application of Bolitho’s “Logic Test” in Nigerian Courts: Since the House of Lords’ decision

in Bolitho v. City and Hackney Health Authority (1997)24, Nigerian judges have begun to subject
22
Ibid.
23
Ibid.
24
Ibid.
expert testimony to a strict “logic and evidence” filter rather than accepting it at face value. A

vivid illustration is Udokwu v. University of Benin Teaching Hospital (High Ct. Benin, 2019,

unreported). In that neonatal-cardiology suit the defendant called two paediatric cardiologists

who attested that the infant’s post-operative collapse was an unavoidable complication 25. Relying

on Bolitho, the trial judge asked each expert to justify, with guidelines or peer-reviewed

literature, why continuous pulse-oximetry the global standard for high-risk neonates had not

been used. Neither expert could cite a guideline, audit, or cost constraint; one answered simply,

“we do not routinely use it.” The court concluded that an opinion unsupported by “any coherent,

evidence-based rationale” could not be characterised as “responsible” under the Bolam

framework and therefore rejected the defence. Udokwu has since been cited in interlocutory

rulings in Lagos and Port-Harcourt as authority that expert opinions must be internally

consistent, scientifically grounded, and fact-responsive before they can exculpate a clinician

confirming the full importation of the Bolitho logic test into Nigerian medical-negligence

jurisprudence26.

Rise of Neutral Medical Assessors to Resolve Expert Deadlock: A second procedural

development in Nigerian malpractice litigation is the routine appointment of court-selected

medical assessors whenever partisan experts present sharply conflicting narratives. The trend

gained formal recognition in Ezenwa v. Federal Medical Centre (2022) 17 NWLR 44127, where

the Court of Appeal affirmed a trial judge’s power under Order 32 of the High Court (Civil

Procedure) Rules to “invite independent professional assistance in highly technical matters.” In

that case orthopaedic surgeons retained by each side offered diametrically opposed explanations

25
Ibid.
26
Bolitho v. City and Hackney Health Authority, [1997] UKHL 46.
27
Ezenwa v. Federal Medical Centre. (2022) 17 NWLR 441.
for postoperative paralysis. The judge appointed a neurosurgeon from the National Postgraduate

Medical College, who reviewed the records, inspected the theatre log, and produced a concise,

jargon-free report. Quoting Bolitho, the Court of Appeal praised the assessor’s evidence as “a

scientifically coherent lens through which the rival testimonies could be weighed,” and warned

against “hired-gun experts whose loyalty lies more with the fee than with the science.”

Following Ezenwa28, High Courts in Lagos, Rivers and Abuja have issued practice directions

encouraging or in complex cases mandating the engagement of neutral assessors in obstetric,

cardiology, and anaesthesia disputes. The presence of an assessor accomplishes three goals:

1. Balances partisanship: It dilutes the influence of retained experts who may skew their

opinions toward the retaining party.

2. Clarifies technical jargon: Judges receive a neutral, plain-language synthesis of intricate

clinical data.

3. Expedites resolution: By narrowing the issues in contention, assessor reports often

facilitate earlier settlements or more focused trials.

This institutionalisation of court-appointed medical assessors thus enhances judicial accuracy

and public confidence in malpractice adjudication, ensuring that verdicts rest on objective

science rather than adversarial spin.

2. Ethics Comes to the Fore: Informed Consent and Patient Autonomy

A second salient trend is the elevation of ethical duties especially informed consent from

peripheral etiquette to core legal obligation.

28
Ibid.
 Okonkwo v. MDPDT (2001)29 as watershed. The Supreme Court held that competent

adults have a constitutional right to refuse treatment, and that a doctor who proceeds without

consent commits professional misconduct. In tort, courts now treat lack of consent as prima facie

breach.

 Consent as an independent head of negligence. In Olaoye v. St. Augustine’s

Hospital (2018)30 the court found for the plaintiff despite flawless surgical technique; the

defendant failed to warn of a 3 % risk of vocal-cord paralysis. Damages were awarded for

violation of autonomy in addition to physical injury.

 Shift from paternalism to dialogue. Judges cite MDCN Rule 19 (“robust,

understandable disclosure”) and NMA Code 4 (“shared decision-making”) to measure

reasonableness. Checklist-style consent forms are no longer enough; contemporaneous notes of a

two-way discussion are demanded31.

 Cultural and religious sensitivities. In Abubakar v. Jos University Teaching

Hospital (2020)32 the refusal of blood transfusion by a Jehovah’s Witness was upheld, echoing

Okonkwo, and the hospital was liable for administering blood without a court order.

These rulings reposition the doctor–patient relationship from hierarchical to contractual: the

physician’s duty now includes respecting choices, documenting conversations, and tailoring

information to the patient’s literacy and beliefs.

29
Okonkwo v. Medical and Dental Practitioners Disciplinary Tribunal, (2001) 7 NWLR (Pt. 711) 206.
30
Olaoye v. St. Augustine’s Hospital, (2018).
31
Ibid.
32
Abubakar v. Jos University Teaching Hospital. (2020).
3. Emerging Threads

Theme Illustrative Judicial Direction

Cases/Orders
Institutional vs. Chin Keow cited in Hospital protocols no defence if they undercut
professional Ekene v. UCH good practice; individual judgment paramount.
standards Ibadan (2022)
Multi-actor Sadiq v. National Courts beginning to apportion fault among
liability Orthopaedic surgeons, nurse-anaesthetists and pharmacists
Hospital (2023) despite separate councils.
Preventive High Court Lagos Pre-trial disclosure of audit reports and morbidity–
sanctions (Practice Direction mortality minutes required to curb spoliation and
2024) encourage early settlement.

4. Implications

The evolving discourse around tortious liability in medical practice in Nigeria particularly as it

intersects with professional codes, judicial interpretation, and patient rights has given rise to

several important implications. These implications not only reflect changes in legal and clinical

behavior but also point to a gradual yet meaningful transformation in the culture of healthcare

accountability and justice delivery in the country.

1. Higher Documentation Standards: Medical practitioners are adopting stricter

documentation practices in anticipation of legal scrutiny. Detailed patient histories,

diagnostic findings, treatment plans, and consent recordings are now commonly

documented, with a focus on protecting against liability and demonstrating

professionalism. Hospitals are also incorporating clinical guidelines into electronic

medical records (EMRs) to ensure adherence to best practices.

2. Broader Claimant Success Pathways: Nigerian courts are expanding the grounds on

which claimants can succeed in tort actions against medical practitioners. In addition to
 proving technical incompetence, patients can now base claims on breaches of ethical

codes, such as failure to obtain consent, disrespecting confidentiality, or poor

communication. This broadens access to justice and emphasizes professionalism in both

skill and conduct.

3. Judicial Capacity Building: The Nigerian judiciary is enhancing its capacity to handle

medical malpractice cases through specialized training programs for judges and legal

practitioners. Reforms such as the creation of health law divisions in courts aim to

streamline medical dispute resolutions, reduce delays, and ensure more informed,

consistent judgments in medical malpractice cases.

4.5.2 Gaps in Judicial Precedents

Despite the positive trends, there are significant gaps in Nigerian judicial precedents concerning

medical malpractice. One of the primary gaps is the lack of clarity and consistency in

determining causation in complex medical cases. While cases like Wilsher v. Essex Area Health

Authority (1987)33 have addressed the challenges of establishing causation, Nigerian courts still

struggle with cases where multiple factors contribute to the harm. The difficulty in linking a

medical practitioner’s actions to the injury suffered by the patient remains an area where the law

is not fully developed. More robust guidelines and clearer precedents are needed to help courts

navigate complex clinical situations where causation is not straightforward. Although recent case

law shows encouraging doctrinal refinement, several lacunae continue to hamper a coherent and

predictable body of Nigerian medical-negligence jurisprudence.

33
Wilsher v. Essex Area Health Authority, [1987] 1 All ER 871.
Modern medical negligence litigation in Nigeria faces significant doctrinal and procedural gaps

across several key areas. First, the treatment of causation in multifactorial injuries remains overly

simplistic, with courts applying a binary approach to causality and rarely employing nuanced

doctrines like “material contribution” or “loss of a chance,” as seen in Ibrahim v. ABUTH (2020)

where cerebral palsy linked to both prematurity and oxygen misregulation failed to meet the

burden of proof. Second, Nigerian jurisprudence lacks clarity on institutional versus individual

liability; despite systemic failings such as broken equipment or understaffing, courts like in

Okafor v. FCT Health Management Board (2021) often isolate blame to the last clinician,

bypassing hospital accountability due to absent statutory or precedential guidance on corporate

or vicarious liability. Third, allied health professionals, despite their growing clinical roles under

task-shifting policies, remain largely outside the ambit of tort claims due to regulatory

fragmentation and procedural barriers, resulting in sparse jurisprudence and inconsistent

standards for non-physician conduct. Fourth, quantification of non-economic damages suffers

from arbitrariness, with courts awarding lump sums without standardized methodology, causing

disparity across jurisdictions and undermining the predictability of settlements—an issue that

could be addressed through appellate benchmarks or legislative guidance akin to UK or South

African models. Lastly, while High Courts have initiated evidentiary innovations such as court-

appointed medical assessors and expert conferencing, the absence of appellate endorsement

leaves these tools vulnerable to legal challenge, as in Ezenwa v. Federal Medical Centre (2022),

highlighting the urgent need for higher court ratification to institutionalize best practices and

enhance procedural efficiency. Collectively, these issues point to the need for doctrinal

refinement and judicial leadership to align Nigerian medical negligence law with contemporary

global standards.
Implications of these Gaps

 Inconsistent outcomes discourage early settlement and erode public confidence.

 Under-deterrence of systemic failings perpetuates latent safety hazards.

 Limited guidance for allied professionals leaves significant patient-safety terrain

unregulated.

 Damages uncertainty inflates litigation costs and malpractice-insurance premiums.

Addressing these gaps through clearer appellate rulings, possible legislative intervention, and

harmonised professional-council protocols would move Nigerian medical-negligence law toward

greater coherence, fairness and preventive impact. Therefore, while Nigerian case law on the

tortious liability of medical practitioners reflects significant progress in aligning legal standards

with evolving ethical and professional expectations, there remain notable gaps that need to be

addressed. The development of clearer rules on causation, the interplay between institutional

policies and medical judgment, and the accountability of allied health professionals are all areas

where Nigerian courts can further refine the law. Addressing these gaps will enhance the judicial

framework for medical malpractice, ensuring better protection for patients and a more robust

system of accountability for medical practitioners in Nigeria.

4.5 Challenges in Enforcing Medical Malpractice Laws in Nigeria

Nigerian jurisprudence has gradually refined the legal tests for medical negligence integrating

Bolam, Bolitho34, and strong informed-consent principles yet turning those courtroom standards

into day-to-day accountability remains difficult. Harmed patients still face an array of obstacles

34
Bolitho v. City and Hackney Health Authority, [1997] UKHL 46.
before they can obtain compensation or prompt systemic change. Some hurdles are procedural:

the litigation process is slow, costly, and evidence-intensive. Others are structural: oversight is

spread across multiple under-resourced professional councils, and malpractice insurance is rare,

limiting meaningful recovery. Still others are cultural and systemic: deep respect for doctors,

inconsistent record-keeping, and a blame-averse clinical culture stifle transparency and

discourage complaints. The subsections that follow examine each category of challenge in detail

and consider how they collectively blunt the compensatory and deterrent aims of Nigerian tort

law.

1. Procedural Barriers in Civil Litigation

Civil litigation remains the principal legal avenue for pursuing claims of medical negligence in

Nigeria. However, for many victims and their families, this path is fraught with complex

procedural hurdles that often undermine access to justice and weaken the overall efficacy of tort

law as a means of holding medical practitioners accountable. These barriers ranging from

prohibitive costs to evidentiary difficulties constitute a significant deterrent, especially for

ordinary Nigerians who seek redress after suffering harm due to substandard care. The following

sections detail the major procedural challenges faced in litigating medical malpractice claims

within the Nigerian legal system35.

One of the most formidable barriers in Nigerian medical malpractice litigation is the high cost of

entry, which renders the civil justice system largely inaccessible to low- and middle-income

patients. Filing fees alone can range from ₦50,000 to ₦200,000, and obtaining certified copies of

essential medical records is both bureaucratically cumbersome and costly. Moreover, the need to

35
Ibid.
secure independent expert witnesse, whose fees can exceed ₦1 million per appearance, not

including additional expenses for consultations, report writing, travel, and security, further

amplifies the financial burden, often leaving claimants without viable legal representation.

Compounding these challenges are prolonged adjudication timelines; in major jurisdictions like

Lagos and Abuja, malpractice suits frequently span four to five years from filing to judgment,

with subsequent appeals extending the process by another three to five years. These delays not

only undermine the integrity of evidence. as witnesses may forget key details, relocate, or pass

away, and records may be lost or degraded, but also increase overall litigation costs. Access to

crucial medical evidence poses another significant hurdle, as hospitals often refuse to release

records without formal court orders, citing patient confidentiality and citing poor archival

practices that result in illegible or incomplete documentation. This evidentiary roadblock

severely hampers a plaintiff’s ability to prove negligence. Additionally, there is an acute scarcity

of independent expert witnesses, largely due to an entrenched "code of silence" among medical

professionals who are reluctant to testify against their colleagues, often demanding high fees and

personal security measures when they do. For instance, in Kalu v. Nnamdi Azikiwe University

Teaching Hospital (NAUTH) (2020), litigation was delayed for nearly eight months until an

independent expert from outside the local professional network could be secured. Collectively,

these procedural and financial barriers reflect a justice system that, while ostensibly open,

remains functionally inaccessible, thereby shielding negligent practitioners from accountability

and underscoring the urgent need for legal reform, institutional capacity building, and integrated

health and justice policies.

2. Structural Weaknesses in the Oversight Ecosystem

Beyond the courtroom, the system of professional regulation and administrative oversight in

Nigeria plays a vital role in maintaining standards of care and ensuring accountability among

medical practitioners. However, this oversight ecosystem is plagued by significant structural

weaknesses that dilute its effectiveness, fragment enforcement, and ultimately fail both patients

and professionals. These weaknesses not only complicate the pursuit of justice in cases of

malpractice but also weaken public trust in the healthcare system as a whole. The key issues are

examined below.

3. Cultural and Systemic Factors

In addition to procedural and structural barriers, the broader cultural and systemic context within

which healthcare and legal institutions operate in Nigeria plays a crucial role in shaping how

tortious liability is understood, pursued, and enforced. These factors influence not only patient

behavior but also how healthcare providers respond to complaints, maintain records, and

perceive accountability. The following subsections examine how cultural norms, institutional

practices, and attitudinal frameworks contribute to the persistent under-enforcement of tort law in

Nigerian medical practice.

Limited Patient Rights Awareness: A major challenge to accountability in Nigeria’s healthcare

system is the low awareness of patient rights. A 2022 CLEEN Foundation survey found that

fewer than 30% of outpatients know they can access medical records or seek legal redress for

negligence. This problem is worse in rural areas, where education and legal literacy are limited.

Cultural beliefs also contribute, as many interpret medical mishaps as divine will rather than

professional error. Even in urban areas, deference to medical authority and fear of reprisal

discourage patients from asserting their rights, allowing malpractice to go unchecked.

Poor Record-Keeping and Data Integrity: Effective tort claims require strong documentation,

yet medical records in Nigeria are often disorganized, incomplete, and vulnerable to damage.

Even where electronic records exist, power outages, poor training, and delayed entries

undermine data reliability. Some clinicians avoid detailed documentation for fear it could be

used against them in court, weakening both patient safety and legal accountability.

Blame Culture vs. Safety Culture: Nigeria’s healthcare system emphasizes punishment over

learning. Fear of sanctions discourages admission of errors, and morbidity and mortality

conferences are kept secret to avoid legal exposure. The absence of “apology laws” also prevents

open dialogue, as apologies may be seen as liability. This fosters defensiveness, erodes trust, and

turns tort law into a last resort rather than a tool for continuous improvement.

The cultural norms, weak documentation practices, and an entrenched blame culture all work

together to weaken the foundations of tortious liability in Nigeria’s medical landscape.

Addressing these systemic challenges will require sustained investment in public legal education,

reforms to documentation standards, and the adoption of regulatory frameworks that promote

openness, learning, and mutual accountability. Until Nigeria addresses these intertwined

procedural, structural, and cultural barriers, the formal advances in case law will translate into

only limited real-world accountability. Reform could include (i) a unified pre-action discovery

rule with cost-sanction teeth, (ii) a compulsory national malpractice-insurance pool, (iii)

integration of professional councils under a single health-professions disciplinary authority, and

(iv) statutory safe-harbour provisions that promote candid disclosure and early settlement 36. Such

measures would make the enforcement of medical-malpractice law more accessible, timely, and

36
Ibid.
effective fulfilling tort law’s twin aims of recompense for the injured and deterrence of unsafe

care.

4.6 Consequences of Tortious Liability on Medical Practitioners and Patients

The imposition of tortious liability within the Nigerian healthcare system carries profound and

multidimensional consequences for both medical professionals and the patients they serve. At its

core, tort law is designed to serve three primary objectives: deterrence of negligent conduct,

accountability for harm, and compensation for victims. In theory, these objectives should drive

improvements in clinical standards, foster greater transparency, and protect patients from

substandard care. However, in practice, the consequences of tortious liability are more complex

especially within a developing health and legal infrastructure like Nigeria's 37. On one hand, the

growing awareness of legal accountability has prompted some health institutions and

professionals to elevate their standards of care, improve record-keeping practices, and invest in

patient communication. These shifts suggest a potential alignment of tort law with broader

quality-improvement efforts. On the other hand, the fear of litigation compounded by a fragile

regulatory framework, weak insurance mechanisms, and limited institutional support has led to

unintended consequences such as defensive medicine, practitioner burnout, and selective

avoidance of high-risk patients. In extreme cases, it may even drive skilled professionals out of

the public health system altogether, further straining access to care.

For patients, the effects are equally paradoxical. While tort law offers a pathway to redress and

empowerment, systemic barriers such as high legal costs, lack of awareness, and prolonged court

timelines mean that very few actually access meaningful compensation. Worse still, some

patients experience a breakdown in trust when providers become evasive or overly legalistic in
37
Ibid.
their interactions. These dynamics underscore a fundamental tension between the aspirational

role of tort law and the practical limitations of the healthcare and legal systems in which it

operates. As this section explores in greater detail, the consequences of tortious liability must be

understood in light of Nigeria’s unique socio-legal context where resource scarcity, regulatory

fragmentation, and cultural attitudes toward medicine all mediate the impact of legal reforms 38.

Any meaningful appraisal of tortious liability must therefore look beyond abstract doctrine to

consider how it tangibly shapes behavior, access, and justice within the clinical environment.

A. Impacts on Medical Practitioners

1. Increased Defensive Medicine

The threat of litigation has led to a rise in defensive medicine, where practitioners adopt overly

cautious or redundant clinical approaches, such as excessive diagnostic testing or unnecessary

referrals39. In Nigeria, anecdotal and qualitative research has shown that some clinicians now

avoid high-risk specialities such as obstetrics or anaesthesia due to fears of potential liability 40.

This overcompensation, while protective legally, inflates the cost of care and may subject

patients to iatrogenic harm.

2. Psychological Stress and Moral Distress

38
Ibid.
39
Owoeye, O. "Defensive Medicine in Nigeria: Implications for Clinical Practice," Nigerian Journal of Clinical
Practice, Vol. 22, No. 3, 2021.
40
Uche, E. "Risk Aversion Among Nigerian Obstetricians: A Qualitative Review," African Health Policy Journal, Vol.
9, 2020.
Medical litigation, or even the fear thereof, contributes significantly to occupational stress,

particularly in already overstretched systems 41. Nigerian physicians interviewed in a 2021 survey

by the Nigerian Medical Association reported heightened anxiety and burnout linked to fear of

malpractice suits, especially when systemic failures such as equipment shortages or staff

undercapacity were likely to be construed as personal negligence42.

3. Professional Reputational Damage

Even unsubstantiated claims can harm a practitioner’s standing, particularly in Nigeria’s

relatively close-knit medical community. Where regulatory findings are opaque but news of

litigation spreads via media or word of mouth, reputational damage can result in reduced

referrals, strained peer interactions, and derailed academic or administrative appointments 43.

4. Positive Incentives for Care Improvement

Despite its drawbacks, the spectre of tort liability has prompted some positive institutional

changes. Hospitals increasingly encourage detailed documentation and better-informed consent

processes. In some tertiary institutions, there is a shift toward implementing risk management

protocols and patient-safety audits as preventive strategies44.

B. Impacts on Patients

1. Empowerment and Awareness

41
WHO-AFRO, "Burnout and Litigation Fear in African Medical Practice," Technical Brief, 2019.
42
Nigerian Medical Association (NMA), Workplace Survey Report on Medico-Legal Risk, 2021.
43
Okonkwo v. Medical and Dental Council of Nigeria (2019) 7 NWLR (Pt. 1670) 150.
44
Medical and Dental Council of Nigeria, Annual Disciplinary Statistics, 2020.
Increased awareness of patients’ legal rights, largely driven by digital platforms and advocacy

groups, has led to greater demand for accountability in healthcare delivery. Urban patients, in

particular, are more willing to seek second opinions or file complaints when care falls below

acceptable standards45. This marks a gradual erosion of the traditionally paternalistic doctor-

patient relationship in Nigeria.

2. Improved Clinical Transparency

Tort liability has pressured some practitioners and institutions to adopt more transparent

communication practices, particularly around surgical risk and post-operative complications.

While often motivated by legal risk rather than patient engagement per se, this has improved

patient understanding and consent quality46.

3. Barriers to Access and Trust

Unfortunately, heightened liability risks may also cause practitioners to avoid treating high-risk

patients or emergencies, especially in poorly equipped settings. There have been documented

instances where doctors declined to perform emergency caesarean sections in peripheral clinics

due to fear of adverse outcomes and legal repercussions 47. Such avoidance behavior

disproportionately affects marginalized communities.

4. Limited Actual Redress

45
Health Reform Foundation of Nigeria (HERFON), "Trends in Hospital Governance and Clinical Risk Management,"
Abuja, 2022.
46
CLEEN Foundation, Patient Rights Awareness in Nigeria: Survey Report, 2022.
47
Adewale, T., "Informed Consent Trends in Lagos State Hospitals," Babcock University Law Journal, Vol. 5, 2020.
Despite formal rights, most malpractice victims never receive compensation. The combined

effect of legal cost, evidentiary barriers, and absence of insurance makes effective remedy

elusive for most patients48. A 2020 report found that fewer than 5% of complaints filed with

regulatory councils in Nigeria result in disciplinary action or compensation orders 49. The

practical effects of tortious liability in Nigeria are mixed. While the doctrine has the potential to

raise standards of care and promote patient rights, its current implementation often leads to

counterproductive behaviors and inequitable outcomes. For practitioners, the legal environment

can be both a motivator and a source of fear. For patients, the promise of justice is frequently

undermined by structural and cultural barriers. A more balanced and integrated approach one that

emphasizes patient safety, fair redress, and institutional support is essential to ensure that tort law

serves both protective and corrective functions in Nigeria’s healthcare system.

48
Interviews with rural health officers in Kogi and Taraba States, conducted by Centre for Health Ethics, March
2021.
49
Obaro, M., "Barriers to Compensation in Nigerian Medical Negligence Cases," Nigerian Bar Review, 2019.