Medical Malpractice In Public Health Emergencies: A Review Of Medical Response To Covid-19 In Nigeria1
The world has not experienced a pandemic with such ravaging effects in the 21st Century as the coronavirus pandemic (COVID -19). Needless to say, the world was caught unawares; every continent recording fatal casualties and deploying their best-known medical expertise to ensure preservation of life and reduced community transmission of the virus.
Medical practitioners2 are at the frontline of the war against this pandemic and there is the expectation that they will apply their skills and expertise to help contain the spread of the coronavirus as well as help in the treatment of patients who have tested positive. The call to preserve lives is indeed a tall order especially in a situation where there are no vaccines or cures and the resulting complexities from contracting the virus are peculiar in each case. This Article examines whether there are instances when or where medical practitioners and medical institutions can be adjudged as negligent in the prevailing pandemic situation. Is there an overriding allegiance to self-preservation which can displace or override the sworn Hippocratic Oath to uphold ethical standards at all times?
For context, the heartbreaking and emotional story of Bertha Okey whose brother died of tuberculosis and 'collapsed intestines'3 after being rejected by a number of hospitals for the fear of him being a carrier of the coronavirus4 brings to the fore the question whether medical malpractice can be excused or justified in a pandemic situation as that of COVID-19.
THE DUTY TO TREAT
In the early history of Medicine, there was no professional acceptance of a duty to care for contagious patients - infectious risks were not recognized, the profession was not organized, and the public did not expect that obligation from physicians.5 The debate as to whether medical practitioners have a duty to treat in circumstances of public health emergencies may not have been totally laid to rest but there seems to be the consensus that epidemics place physicians in the situation of caring for patients despite the apparent unquantifiable risk to themselves. The discussion here focuses on the "duty to treat"6 as an obligation which must be fulfilled even in a pandemic situation.
WHAT CONSTITUTES MEDICAL MALPRACTICE?
Medical malpractice occurs when a hospital, doctor, or other health care professional(s) through a negligent act or omission causes an injury to a patient. Medical malpractice is founded on the principle of negligence in tort which places on every medical practitioner the 'duty of care' to avoid foreseeable injury to every patient. A duty of care is owed wherever in the circumstances it is foreseeable that where care is not exercised, harm will be done.
A duty of care is therefore established when a medical practitioner's actions or omission fails to meet the appropriate professional standards some of which are set out in such body of ethical rules.7 The duty of care of medical practitioners in Nigeria is encapsulated in the Code of Medical Ethics 20049 , the Medical and Dental Practitioners' Act, 20048 , and also in the Hippocratic Oath.10 Medical practitioners by the oath are expected to dedicate their lives to the service of humanity, to the health and wellbeing of their patients, the autonomy and dignity of their patients, the utmost respect for human life, and the practice of the profession with conscience and dignity in accordance with good medical practice.
THE 'DUTY OF CARE' IN A PANDEMIC SITUATION
Having established that medical practitioners have a duty to treat, what does the 'duty to treat' entail in the context of the 'duty of care' expected of medical practitioners or institutions in a pandemic situation such as COVID-19.
How do we determine the duty of care medical practitioners owe to patients of infectious diseases such as COVID -19 and non COVID-19 patients? From what laws or regulations do we glean the standard of care we expect from our medical practitioners which can be the basis for assessing whether there has been a breach of that standard of care or not?
Medical professionals remain the vehicle by which laws and policies, processes and systems will be given effect for the prevention and treatment of infectious and communicable diseases present during a public health crisis. The Quarantine Act of 2004, the National Health Act, 201411, and the Nigeria Centre for Disease Control and Prevention (NCDC) Act are the laws that govern disease detection, prevention, control and surveillance in Nigeria. The Quarantine Act makes no provisions for the function of medical practitioners in enforcing the laws. The National Health Act however highlights the obligations of health care personnel by stating that they are not to refuse anyone emergency medical treatment for any reason12 and anyone who does so is guilty of a criminal offence13. The Act also states clearly that every health establishment shall implement measures to minimize disease transmission. Although the National Health Act was not promulgated in contemplation of public health emergencies such as COVID-19, it can be said to have a general application which can be extended to cover public health emergencies. The obligation on health institutions to minimize disease transmission14 can be taken as the duty to prevent disease which is a part of the larger 'duty to treat'. In giving better definition to the duty to prevent, the NCDC has issued the guidelines and protocols for the prevention, control and surveillance of infectious diseases stating in clear terms what is expected of medical practitioners and institutions and how to alter or suspend their routine practices and create triage stations15 to better respond to public health emergencies such as COVID-1916. These guidelines highlight the need for suspected and confirmed cases to be treated in designated hospitals with effective isolation and protection conditions.17 It is commendable that the NCDC has set out robust guidelines but a review of the response of many health institutions in Nigeria does not indicate that these guidelines have been adopted and translated to individual protocols. Health care workers and health institutions must also comply with the NCDC guidelines to avoid being held liable for the breach of such subsidiary legislations18.
In the United States, when there is a mass casualty event, hospitals and medical personnel are expected to shift largely from individual patient care to population based care via well planned medical triage19. Multiple medical triage protocols are created and the goal of the protocols is to save as many lives as possible with the limited resources available. What is most important is that there is a protocol which guides their action during the mass casualty event. This preparedness in itself amounts to the fulfillment of that duty to prevent which has now been established as a fundamental duty in public health emergency situations. A fulfillment of that duty as a minimum standard of care can significantly reduce the chances of transmission, morbidity and mortality. The fact that there is a mass casualty arising from a disaster event or an epidemic as in the case of COVID-19 does not in itself insulate medical practitioners and institutions from claims of malpractice. In public health emergency situations such as that of COVID -19, the degree to which hospitals have prepared in advance may positively correlate with their ability to effectively respond to the pandemic.20 Hospitals in Nigeria in responding to the COVID-19 pandemic have taken a number of medical responses which calls to question the obligation to ensure there is no breach of the standard of care expected of medical institutions. We will now examine some of these responses.
REJECTION OF PATIENTS
Upon the incidence of the outbreak of the COVID-19 in Nigeria, a number of hospitals have refused to accept patients especially when they present with symptoms which resemble that of COVID-1921. The hospitals declined to allow such patients consult with any of their medical practitioners or even get access into the premises. Whilst the hospitals may argue that they declined treatment to preserve the health of their staff and other non-COVID -19 patients in the hospital premises by reducing their exposures, it can also be argued that the asymptomatic/symptomatic patient whom the hospital has refused to treat will transmit the virus to tens of other people. The hospitals in upholding the ethos of preserving life and ensuring treatment can properly connect the patient to officials of the National Centre for Disease Control (NCDC) who will assess the symptoms of the patient and examine whether the patient should be tested or advised to self-quarantine. Rejecting a patient on whatever basis is a breach of that minimum duty to prevent the further transmission of the disease. Every hospital should have in place guidelines and protocols for dealing with a varying number of emergency situations which may be presented during this pandemic, whether it's for COVID-19 patients or other patients. Refusing to give emergency treatment to any patient on the assumption that the patient may be carrying the virus is in contravention of the National Health Act, and by every means a breach of the medical practitioners' duty of care.
TREATMENT IN ISOLATION CENTRES AND DESIGNATED HOSPITALS
There is also the 'duty of care' owed by the medical practitioner and other health workers to patients being isolated whose COVID-19 status have not been confirmed. The medical practitioners have the duty to ensure that patients in the isolation centres obtain adequate medical treatment and attention. It was reported that in an isolation centre in Jigawa, a pregnant woman had a miscarriage and bled to death22. This raises numerous questions as to how a pregnant woman had a miscarriage and there was no medical practitioner to attend to her till she died. This is indicative of the pressure that curtailing the pandemic has placed on our health care infrastructure and if caution is not taken, harm and injury will be done to non-covid-19 patients and a floodgate of claims will be instituted against medical practitioners and medical institutions post COVID-19.
Some non-designated hospitals have also taken on the treatment of COVID-19 patients without following the protocols set by the NCDC. At the onset of the outbreak in Nigeria, it was reported that most of the deaths occurred in private hospitals which solely administered treatment23. Some hospitals may have considered the pecuniary gain over and above such other important considerations such as the risk of facilitating the transmission of the virus to other patients in the hospitals especially those who have underlying conditions and who are more likely to contract the virus.
The protocol of the NCDC is to administer treatment to persons with the COVID-19 in isolation centres and designated hospitals and medical practitioners and health institutions must comply with that regulation in fulfillment of their duty to prevent. For non-designated hospitals, this duty will involve redirecting COVID-19 patients to the NCDC and putting in place adequate reporting systems which will ensure the NCDC can follow up with such patients.
DUTY OF CARE OF MEDICAL VOLUNTEERS
Medical Practitioners who volunteer their skills and expertise can equally take actions or have omissions which can amount to medical malpractice in a public health emergency crisis for breach or deviation from statutory, regulatory, or health emergency policies. Preparing a volunteer for his or her role in a public emergency situation reduces the incidence of liability against the volunteer and against the institution which may have engaged the volunteer. Ensuring there is a screening and credentialing process is key to the selection process of volunteers. Quick training on protocols and response methods put in place to treat COVID-19 patients and to prevent transmission is also very important. Expatriate Medical practitioners who have been deployed from other countries and have been given the limited license to practice in the host country24 can be liable for breach of a duty of care25. In April, an 18-member Chinese medical team arrived in Nigeria to assist the Nigerian government in its fight against COVID-19. It has been said that the Chinese team will only give medical advice in controlling the pandemic. In a situation where such medical advice amounts to harm or injury being done to COVID -19 patients, a claim for medical malpractice can be established. The status of the expatriates as imported expertise or humanitarian doctors will not absolve them of the responsibility to exercise due care.
USE OF TELEMEDICINE
Telemedicine is the remote diagnosis and treatment of patients by means of telecommunications technology. The question the use of telemedicine poses is whether a claim for malpractice can arise from the treatment proffered to a patient from a diagnosis using telemedicine where there is an injury/death arising from such diagnosis/treatment. The use of telemedicine will not alter the standard of care expected from a medical practitioner and will not fall within the scope of "emergency" standard of care which assumes that treatment prioritization and allocation of scarce resources overrides any traditional protocols required in attending to a patient. The professional standards have by the codes of professional conduct clearly set the protocols for attending to a patient which includes, testing, diagnosing and treatment and the fact that there is a prevalent public health emergency situation will not absolve any medical practitioner from the standard duty of care owed to that patient on the other side of the technological device requesting for medical advice. Issues such as confidentiality, professional competence, legal and registration status of the specia1ist being consulted, equipment reliability, sustainable continuity of patient management and timely referral of patient are potential medico-legal pitfalls which can be created by the use of telemedicine26. It is important that medical practitioners and institutions put in place risk mitigating mechanisms in their use of telemedicine which by all standards do not meet the required protocols for treatment. Otherwise a flood of claims can arise from such use of technology. For the use of telemedicine, it may be preferable to use such documents such as informed consent documents which will detail the impracticality of providing medical services in a public health emergency situation and that the patient gives his consent to the consultation, diagnosis and recommended treatment enabled by technology. In such circumstance the duty of care owed is the duty to preserve life in spite of the impracticality to physically see the medical practitioner.
There is an established duty of care to all patients and there is no gainsaying the fact that even in public health emergency situations such as the COVID -19, that duty of care can be interpreted to mean the duty to prevent the transmission of a deadly disease. The upsurge in demand for health services in a pandemic situation will also not excuse or justify the breach of the duty of care medical practitioners have to all patients. Although the threshold for determining the duty of care which medical practitioners have towards their patients may vary in every circumstance, the chances of success of a claim against medical malpractice can be increased when it is supported by the enforcement of such constitutional rights as the right to life27 , the right to health28 , and the right not to be discriminated against29. There will be those situations where harm or injury may occur even where the medical professional has acted in his best judgment. It is for such occurrences that it is equally important that medical institutions takeout malpractice insurance to indemnify them against any liabilities arising from malpractice claims.
To better respond to the pandemic, many hospitals and health institutions can also collaborate, re-organize or restructure their operations to enlarge their capacity to create triage stations, better maximize minimal resources and put in place risk management mechanisms.
As the world begins to evolve out of the devastating effects of COVID-19, the woes of the pandemic will soon become fleeting swipes of our recollection, but the sacrifices of our medical professionals who stand as our front line heroes remain indelible marks in our hearts. Medical practitioners must however remember that the possibility of an allegation of malpractice remains even in a pandemic situation and they must act with the consciousness of the duty of care they have as we fight this unprecedented war to the end.
1 This Article was written by Tomilola Tobun, (Senior Associate and Head of Corporate Practice), with contributions from Temidayo Adewoye (Associate) and Ibidoyin Aina (Associate) of Perchstone & Graeys.
2 Medical Practitioners as used in this Article refers to any health care worker whose function is to prevent, diagnose and treat diseases.
3 Otherwise called intussusception, a medical condition in which one part of the intestine slides into an adjacent part of the intestine, cutting off blood supply to the affected part of the intestine which can lead to a tear in the bowel, infection and death of bowel tissue.
4 Story was captured in an interview by PUNCH newspapers with Bertha Okey. Accessed 13th May, 2020 on https://m.facebook.com/story.php?story_fbid=3170263949678412&id=206270189411151
5 Samuel J. Huber & Mathew K.Wynia, "When Pestilence prevails...Physician responsibilities in epidemics". The American Journal of Bioethics 4(1): W5 –W11, Winter 2004, Volume 4 No. 1, DOI: 1162/152651604773067497
6 Samuel J. Huber & Mathew K.Wynia (n 5 above).
7 Okonkwo V. MDPRT (1999) 6 NMLR PT 786.
8 Sections 28 – 48 of the Code of Medical Ethics Nigeria, Issued by the Medical and Dental Council of Nigeria in consonance with the provisions of the Medical and Dental Practitioners Act Cap 221 Laws of the Federal Republic of Nigeria 1990 (now Cap M8, 2004) on the 1st of January, 2004.
9 Section 17 Medical and Dental Practitioners' Act, Cap M8, Laws of the Federation, 2004.
10 The Hippocratic Oath is an oath of ethics taken by physicians to uphold specific ethical standards. The oath establishes significant principles of medical ethics. The original oath was written in ionic Greek but has today been revised by several National Medical Associations. The core of the oath taken by Nigerian Medical Practitioners is that the health of the patient will be the first consideration and the sick will be given treatment to help the sick and never with a view to injure or do harm.
11 Sections 20 & 21 of the National Health Act 2014, official Gazette of the Federal Republic of Nigeria, Vo. 101, No. 145, P. A139 – 172.
12 Section 20(1) (2).
13 Section 20(1) (2) of the National Health Act, 2014.
14 Section 21 (2) (b).
15 A triage is the process of sorting people based on their need for immediate medical treatment and allocation of limited medical resources in order to maximize the number of survivors.
16 Infection Prevention and Control; Recommendations during health care when COVID-19 is suspected, Personal Protective Equipment Recommendations during health care delivery, for patients with suspected or confirmed Covid-19 infection, and the National Interim guidelines for Clinical management of COVID 19.
17 See the National Interim guidelines for Clinical management of COVID 19.
18 Section 25 of the NCDC Act empowers the Centre to make regulations and issue guidelines for the purpose of giving effect to the provisions of the Act upon the approval of the Minister.
19 James G. Hodge Junior, Andrea M. Garcia & Ors. Emergency Legal Preparedness for Hospitals and Health Care Personnel 2009 3 (Suppl 1): S37 –S 44 DOI: 10.1097/DMP.0b013e31819d977c.
20 James G. Hodge Junior, Andrea M. Garcia & Ors. (n. 19 above).
21 Foreigners brought into the emergency ward of the Gbagada General Hospital were not attended as one of them was showing signs of COVID-19 and it was reported that the management of the hospital had instructed that foreigners should no longer be attended to. https://punchng.com/covid-19-doctors-nurses-flee-as-suspected-cases-hit-lagos-hospital. Accessed 10th May, 2020.
22 https://www.channelstv.com/2020/05/04/pregnant-woman-dies-of-covid-19-in-jigawa/ accessed on 10th May, 2020.
23 12 out of 14 COVID-19 deaths occurred in private hospitals. https://m.guardian.ng/news/12-of-14-lagos-covid-19-deaths-occurred-in-private-hospitals/ accessed 10th May, 2020.
24 Section 7 Code of Ethics.
25 Section 13 (4) of the Medical and Dental Practitioners' Act.
26 Section 22 Code of Medical Ethics in Nigeria.
27 Section 33 of the 1999 Nigerian Constitution (as amended in 2010) which has been constructively interpreted to include the right to health by the African Commission on Human and Peoples' Rights in Socio-Economic Rights Action Centre (SERAC) and Another v. Nigeria ((2001)AHRLR 60 (ACHPR 2001)); Purohit and Another v The Gambia ((2003) AHRLR 96 (ACHPR 2003)).
29 Section 42 of the 1999 Nigerian Constitution (as amended in 2010).
Originally published 20 May, 2020
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