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Towards healthcare system that protects patients and is fair to practitioners 23 Feb 2026

The recent spate of medical negligence cases that have captured public attention in Nigeria reveals a healthcare system under strain and a legal framework struggling to balance accountability with fairness. Harrowing incidents have reignited debates about the duties owed by medical practitioners to their patients and the adequacy of existing mechanisms for redress. Yet, beneath the understandable outrage lies a more complex reality: Nigeria's medical negligence crisis cannot be understood – or resolved – through punitive measures alone.

The case of Aishatu Umar, a mother of five who died in September 2025 after surgical scissors were left in her abdomen during an operation at the Abubakar Imam Urology Centre in Kano, according to media reports, exemplifies the human cost of negligent medical practice. Similarly, in Ekiti State, Emmanuel Afolayan underwent surgery after a road accident. He emerged from surgery without his kidneys, a discovery made only when his condition worsened, and he sought second opinions at other facilities.

These cases are not isolated incidents. They represent a pattern of systemic dysfunction within Nigeria's healthcare sector – a sector plagued by inadequate infrastructure, personnel shortages, and chronic underfunding. According to recent reports, the doctor-to-population ratio in the country currently stands at 3.9 per 10,000, far below the World Health Organisation's recommended minimum of 10 per 10,000. In 2025, the Coordinating Minister of Health and Social Welfare, Prof. Muhammad Ali Pate, cited data showing over 16,000 Nigerian doctors have emigrated in the past five to seven years, seeking better working conditions abroad. Those who remain work in overburdened facilities, often without essential equipment, adequate support staff, or the institutional safeguards necessary to prevent errors.

This context matters profoundly for how we approach medical negligence law in Nigeria. The challenge is to develop a legal and regulatory framework that holds practitioners accountable for genuine misconduct while acknowledging the structural constraints within which they operate. Punitive approaches that fail to distinguish between systemic failures and individual culpability risk driving the remaining practitioners out of the profession or into defensive medicine that prioritises legal protection over patient welfare. Conversely, excessive deference to medical judgment or blanket immunity based on infrastructure deficits would leave patients without recourse and perpetuate a culture of impunity.

Nigeria’s legal framework for addressing medical negligence operates across three distinct but overlapping domains: civil liability in tort, criminal prosecution, and professional discipline. Each pathway offers different remedies and operates different standards of proof, creating a complex landscape that often confuses both victims and practitioners.

Under tort law, medical negligence is established by proving three elements: that the medical practitioner owed a duty of care to the patient, that the practitioner breached that duty by falling below the required standard of care, and that the breach caused injury or damage to the patient. The standard of care is not perfection but rather the level of skill and competence that a reasonably competent practitioner in the same field would exercise under similar circumstances. This professional standard, derived from English common law principle articulated in Bolam v Friern Hospital Management Committee, requires that a practitioner's conduct be judged against accepted medical practice at the time, as determined by a responsible body of medical opinion.

Nigerian courts have consistently applied this principle. In Otti v Excel-C Medical Centre Ltd & Anor, the Nigerian court held, “It is rudimentary law that in order to find a medical professional guilty of negligence, the situation has to be such that what he did is what professional colleagues would say that he really made a mistake and that he ought not to have made it. Put differently, the action would be such that falls short of the standard of a reasonably skillful medical professional”. This approach recognises that medicine involves judgment calls where reasonable practitioners may differ, and that adverse outcomes do not automatically constitute negligence.

However, applying professional standards creates significant challenges for claimants. Establishing medical negligence requires expert testimony from other medical practitioners willing to testify that their colleague's conduct fell below acceptable standards. In Nigeria's close-knit medical community, obtaining such testimony is often difficult. The evidentiary burden is high, requiring detailed medical records, expert analysis, and proof of causation – all of which are expensive and time-consuming to assemble. This means many medical errors in Nigeria go unreported, and even among reported cases, successful civil litigation remains rare.

The criminal law pathway provides for prosecution under the Criminal Code Act for manslaughter where negligence results in death, or for misdemeanour where negligent treatment endangers life or causes harm. The Act specifically criminalises the giving of medical treatment in a reckless or negligent manner. Yet, criminal prosecutions for medical negligence are quite rare in Nigeria, partly due to the high burden of proof required (beyond a reasonable doubt) and prosecutorial reluctance to pursue such cases absent clear evidence of gross negligence or malicious intent.

The third pathway – professional discipline through the Medical and Dental Council of Nigeria (MDCN) – offers potentially the most accessible avenue for victims. The MDCN's Investigating Panel examines complaints of professional misconduct, and where a prima facie case is established, the matter proceeds to the Medical and Dental Practitioners Disciplinary Tribunal. The Tribunal can impose sanctions ranging from reprimands to suspension or permanent removal from the medical register. Importantly, professional discipline proceedings operate according to lower evidentiary standards than civil or criminal cases and do not require the complainant to bear litigation costs.

Yet, this regulatory pathway also faces significant limitations. The MDCN is handling complaints about practitioners across a vast country with limited personnel and infrastructure. Investigations are often protracted, and the Tribunal's capacity to hear cases is constrained. Moreover, the MDCN's sanctions – while serious for the practitioner – do not provide financial compensation to injured patients. A patient may secure a finding of professional misconduct against a doctor, yet still needs to pursue separate civil litigation for damages.

A critical challenge in developing medical negligence jurisprudence in Nigeria is distinguishing between errors attributable to individual practitioners' misconduct and those arising from systemic healthcare failures. This distinction matters both for fairness and for effective policy responses. Nigerian medical practitioners operate within constraints that would be unacceptable in well-resourced healthcare systems. Equipment failures, drug shortages, absent support staff, and overwhelming patient volumes are daily realities. Holding practitioners to standards that assume optimal conditions would be manifestly unjust. Yet, neither can systemic constraints excuse all errors; gross negligence, recklessness, or willful disregard for patient safety cannot be excused by invoking infrastructure deficits.

The law must therefore develop a more nuanced approach. Wilful negligence – characterised by conscious disregard of known risks, deliberate deviation from established protocols without justification, failure to seek assistance when clearly beyond one's competence, or fraudulent conduct such as falsifying records – should attract full liability and severe sanctions regardless of systemic constraints. These behaviours reflect failures of professional ethics rather than inevitable consequences of poor conditions.

Conversely, errors arising primarily from systemic failures, such as lack of essential equipment, inadequate staffing resulting in unreasonably high workloads, absence of functioning diagnostic tools, or inability to access specialist consultation, should be analysed through a framework that considers what a reasonable practitioner could achieve under the actual circumstances, not idealised conditions. This does not mean practitioners escape accountability, but rather that liability should extend to institutions, hospital administrators, and even government agencies whose failures created the conditions for error.

The doctrine of vicarious liability, which holds hospitals responsible for their employees' negligence, provides one mechanism for this broader accountability. Hospitals that fail to maintain equipment, adequately staff departments, or implement safety protocols should bear primary liability when these failures contribute to patient harm.

Moreover, government agencies responsible for healthcare funding, regulation, and infrastructure development should not be immune from accountability. Where state or federal health ministries fail to provide adequate budgets, allow facilities to deteriorate, or neglect workforce planning, leading to critical shortages, they contribute materially to negligent outcomes. 

The MDCN, the Nigerian Medical Association (NMA), and other professional bodies must play more proactive roles in addressing medical negligence through standard-setting, education, peer review, and disciplinary enforcement. The MDCN's primary statutory mandate is to regulate medical practice and maintain professional standards. Its Code of Medical Ethics establishes detailed standards covering everything from clinical competence to patient confidentiality. Yet, enforcement remains weak. The Council demonstrates willingness to act when public pressure is intense, but such responsiveness should be systematic rather than episodic.

The NMA, as the professional body representing doctors' interests, occupies a more complex position. While the NMA has ethical codes and disciplinary procedures for members, it also functions as a labour organisation, advocating for doctors' welfare and working conditions. This dual role creates inherent tensions: the Association must simultaneously hold members accountable to patients while defending them against unfair blame for systemic failures beyond their control.

Meaningful progress in addressing medical negligence in Nigeria requires reforms along two parallel tracks: strengthening accountability mechanisms while simultaneously addressing the systemic healthcare failures that create conditions for negligence. On the accountability track, reforms should include digitalising medical records to improve documentation and facilitate investigation of claims; establishing specialised medical negligence tribunals with expertise in both medical and legal matters to expedite resolution of cases; creating a medical insurance scheme that ensures victims can be compensated even where individual practitioners lack resources; enhancing the MDCN's investigative capacity through increased funding, personnel, and technology; and mandating hospital incident reporting systems that track adverse events and near-misses to identify patterns requiring intervention.

On the systemic reform track, priorities should include dramatically increasing healthcare budgets at federal and state levels to address infrastructure deficits; developing physician retention strategies including improved compensation, housing, security, and career development opportunities to stem brain drain; investing in medical education to increase the pipeline of qualified practitioners; implementing mandatory maximum duty hours and adequate rest periods for medical staff to reduce fatigue-related errors; establishing continuing medical education requirements with government-funded programmes to ensure practitioners maintain competence; and strengthening health insurance coverage to reduce out-of-pocket payment pressures that incentivise cutting corners.

These parallel tracks are complementary, not contradictory. Accountability mechanisms without systemic improvements would amount to punishing practitioners for failures beyond their control while leaving underlying problems unaddressed. Systemic improvements without accountability mechanisms will fail to deter wilful negligence and provide no recourse for victims. Both are essential.

Ultimately, reducing medical negligence in Nigeria requires a healthcare system that adequately resources practitioners, implements safety protocols, maintains professional standards, and provides accessible remedies when things go wrong. Until systemic investments match rhetorical commitments to healthcare, incidents will continue, and the law alone cannot fill the gap left by political neglect. But the law can – and must – ensure that when negligence occurs, victims have avenues for redress and institutions face consequences that incentivise improvement. That balanced approach offers the best path toward a healthcare system that protects both patient safety and practitioner fairness.

Funmilayo Odude is a Partner at Commercial and Energy Law Practice (CANDELP).