THE NAIROBIAN ON THE SUIT AGAINST AGHA KHAN HOSPITAL: THE LIMITS OF MEDICAL LIABILITY

Justice Wilfrida Okwani was stated to have said:
"To the extent that the first respondent allowed two females to enter the room while examining the petitioner's private reproductive organ without informing him and seeking prior consent, his constitutional rights were violated".

The fact remains that this " unauthorized" act did not take place in Nigeria. The Justice did not also tell us the specifics of the petitioner's constitutional rights that were violated.

However, there are a few things that a Nigerian doctor and Nigerian patients can take home from the abovementioned suit. They are as follows.

1. Teaching Hospitals are statutory creations and not private establishments

2. Teaching Hospitals are mostly statutory corporations in most African countries

3. Like any other corporate persons, a contract between anybody with the corporate entity of the teaching hospitals is not without requisite references to the enabling laws

4. Ignorance of the enabling and regulatory laws of a teaching hospital by the other contracting party is not detrimental to the legal status or position of the hospital or its agents

5. Medical practice is regulated by the medical ethics regulatory laws

6. Practice within the confines of the medical ethical laws is protective of the practitioners although not completely absolving of unconstitutional ethical principles

7. Consent for physical examination is not ethically a written consent. Thus an allegation of absence of oral consent cannot suffice without concrete proof of the absence of consent.

8. There is usually a warning from even the names of Teaching Hospitals showing that they are teaching hospitals, where medical students are taught using patients as subject of study, thereby affixing on the patients actual, implied or constructive notice.

9. The extent of privacy and comfort offered patients depend on the facilities available in the teaching hospitals as recognized most of the time by the health ministry laws of most countries of Africa. This also affixes on the patients actual, implied or constructive notice

10. That every patient must be treated with dignity and respect as human being in the course of their seeking of health care

11. That the constitutional rights to privacy as regards the involvement of the medical students, is abrogated by the statutory and professional nature of the teaching hospitals

12. That the control of the ingress or egress of medical students in the consulting rooms is not the job of the physician

13. That a patient always has an unmitigated right to stop clerking and physical examination at any stage of consultations, and therefrom report his dissatisfaction to superior authorities

14. That contact with patients body, especially contacts with the genitals, during physical examination, should only be undertaken with patients consent expressly or impliedly given

15. That a patient is not a piece of wood and therefore need not wait till after the physical contacts or examination had happened before taking measures to stop unauthorized contacts with his body

16. That medical care contracts, like any other contracts of service, have to be treated as such, and not to be construed against the practitioners where the recipient chose not to orally object to understood or conceived inappropriate actions of the medical examiner

17. That patients are not dummies and thus are not precluded from asking questions, object to acts of the medical examiners as conceived inappropriate, or give instructions, at any point during consultations, on their health care processes

18. That dubious patient leeches cannot be permitted by the judicial processes to capitalize on some post-consultation afterthoughts to exploit medical personnel and institutions, using orchestrated petitions

19. That statutory protections afforded teaching hospitals for being teaching hospitals do not extend to or avail a medical personnel in the private practice

20. That the principles of actual, implied and constructive notices have not abrogated the right to dignity of human person. It only modified and tempered its absoluteness

Having outlined these medical facts, it is therefore curious and unfathomable how the judge blamed the physician for the ingress of the medical students in the consulting room. In fact, the consulted doctor may even be a trainee needing the assistance of the ingressed persons.

The doors to the consulting rooms are open to all the medical students and physician residents who are on clinical postings in the teaching hospitals. The doors are never locked, although they are usually closed. Locking a consulting room is even suspicious. The physician has to balance the risks of being too secretive of his medical services and being too open with the patients case amongst his peers, seniors or juniors.

The issue of fondling of the patient genitals by the momentarily ingressed female trainees is not proved or provable. It is likely an I say he says scenario.

Awkadigwe Fredrick Ikenna
(MBBS, LLB, MWACS, DSC)

This article can be read and shared purely for enlightenment and education of the people of Nigeria. The reader can also freely comment and argue with the thoughts of this author .

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